| CONTACT: |
| Supreme Court of the Philippines Library Services, Padre Faura, Ermita, Manila, Philippines 1000 |
| (632) 8524-2706 |
| libraryservices.sc@judiciary.gov.ph |
881 Phil. 290
THIRD DIVISION
[ G.R. No. 242118, September 02, 2020 ]
MANUEL QUILET Y FAJARDO @ "TONTING," PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT..
D E C I S I O N
ZALAMEDA, J.:
While the Court supports the government's efforts to combat the proliferation of illegal drugs in Philippine society, We maintain the importance of abiding by the procedural safeguards in all drug-related cases. Vigilance in eradicating illegal drugs must not come at the expense of disregarding the law, rules, and established jurisprudence on the matter.[1]
The Case
Before this Court is a Petition for Review on Certiorari, seeking reversal of the 12 July 2018 Decision[2] and 12 September 2018 Resolution[3] of the Court of Appeals (CA) in CA-G.R. CR No. 38852, which affirmed the 17 May 2016 Decision[4] of Branch 23, Regional Trial Court (RTC) of Manila in Criminal Case No. 14-309123, finding petitioner Manuel Quilet y Fajardo @ "Tonting" (petitioner) GUILTY of violating Section 11(3), Article II of Republic Act No. (RA) 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002, as amended."
Antecedents
Petitioner was indicted through an Information, the accusatory portion of which reads:
According to the prosecution's version of the facts,[7] petitioner went to the Manila City Jail on 07 October 2014 to visit his boyfriend, who was then an inmate therein. Prior to petitioner's entry into the premises, Jail Office 3 Gregorio Leonor III (JO3 Leonor) inspected his belongings and subjected him to a body search.
JO3 Leonor asked petitioner, who was wearing a bra, to pull up his shirt and to remove the bra's padding. An inspection of the padding revealed an open plastic sachet containing suspected dried marijuana leaves. Thereafter, JO3 Leonor confiscated the plastic sachet with its contents and marked it with "GTL 04-10-14." He informed petitioner of the latter's rights as an accused, and turned over the seized items to investigator JO2 Edgar P. Taoc (JO2 Taoc) for proper disposition.[8]
Pursuant thereto, JO2 Taoc prepared the Letter Referral for Inquest, Booking Sheet and Arrest Report, Chain of Custody Form, Letter Request for Laboratory Examination, and Incident Report and Turn Over. JO2 Taoc also conducted the inventory in the presence of JO3 Dominador Noe, Jr. (JO3 Noe), who also took photographs of the confiscated items. Later, JO2 Taoc delivered the seized items to the PDEA crime laboratory and handed them to Forensic Chemist Richard M. Solis. The laboratory examination confirmed the seized items to be marijuana.[9]
Petitioner denied the charges against him. He claimed that on 07 October 2014, he arrived at the Manila City Jail to visit his boyfriend. JO3 Leonor frisked him and asked him to pull up his shirt. JO3 Leonor supposedly found the small plastic sachet containing marijuana in the padding of his bra. However, petitioner claimed that he did not know who owned the plastic sachet containing marijuana recovered from his person. Petitioner argued he was a regular visitor at the Manila City Jail. Hence, it would be illogical for petitioner to bring prohibited items because he knew that a body search is conducted before a visitor is allowed entry.[10]
Ruling of the RTC
After trial on the merits, the RTC rendered its 17 May 2016 Decision, convicting petitioner of the offense charged. The trial court concluded that the prosecution had successfully proven the elements needed to convict petitioner for illegal possession of dangerous drugs. The dispositive portion of the Decision reads:[11]
Ruling of the CA
On 12 July 2018, the CA affirmed the RTC's ruling, as it agreed that the prosecution proved all the elements of illegal possession of dangerous drugs. The CA likewise found petitioner's argument on the supposed irregularity of the strip search performed by JO3 Leonor unmeritorious, holding thus:[12]
Petitioner sought reconsideration, but the same was denied by the CA in its 12 September 2018 Resolution.[14]
Hence, the present petition.
Issues
Petitioner raises the following issues:
I.
Ruling of the Court
We find the petition meritorious.
Central to the proper resolution of this case are the provisions of BJMP Standard Operating Procedure (SOP) No. 2010-05, Our previous ruling in the case of Tuates v. People of the Philippines,[16] and a painstaking look at the chain of custody of the item supposedly seized from petitioner.
The arresting officers failed to
observe the prescribed procedure in
searching or frisking petitioner
The search of the persons of jail visitors and of their belongings fall under the general rubric of "institutional security." This is clearly spelled out in the "Background/Rationale" of BJMP SOP No. 2010-05, which reads:
Contraband, whose introduction into jail facilities is proscribed by the SOP, is classified into: (1) "illegal contraband," which is unlawful in itself and not because of some extraneous circumstances, such as dangerous drugs, weapons, potential weapons, explosives; and (2) "merely prohibited and nuisance contraband," which may not be classified as illegal under the law but is forbidden by jail rules, such as cellphones, intoxicating liquor, cigarettes, and pornographic materials.[18]
BJMP SOP No. 2010-05 also lays down certain general policies, two (2) of which are relevant to this case:
The types of body searches defined and regulated by BJMP SOP No. 2010-05 are classified from the least to the most intrusive: (1) pat/frisk and rub body search; (2) strip search; and, (3) visual body cavity search. They are defined in BJMP SOP No. 2010-05 as follows:
Even granting arguendo that such probable cause existed in said scenario, JO3 Leonor nevertheless should have followed the detailed guidelines for a Strip Search, as laid down in Section VII of BJMP SOP No. 2010-05, herein quoted in full:
VII. Guidelines in the Conduct of Strip Search for Visitors
The conduct of strip search shall be done provided all the following conditions are met:
xxxx
From the foregoing, it is clear that the BJMP personnel failed to follow the the procedure laid down in BJMP SOP No. 2010-05. The prosecution did not present evidence that the Jail Warden or Jail Officer of the Day had knowledge and directed the conduct of a strip search. The required Authorization (Annex A) was not filled up, and the Waiver of Right Form (Annex B) was not given to petitioner to sign before he was made to pull up his shirt.
In Tuates v. People,[21] the Court held that -
There were material discrepancies in
the marking of the seized items
In summing up the evidence for the prosecution, the CA Decision stated that "JO3 Leonor III confiscated the plastic sachet and its contents and marked it with 'GTL 04-10-14' xxx."[22] But in a later portion of the same Decision, the CA stated a material contradiction: "JO3 Leonor III marked the seized item with 'GTL,' and turned over the seized item to investigating officer, JO2 Taoc xxx."[23]
The trial court itself, in its own summary of the prosecution evidence, stated that JO3 Leonor "placed the markings 'GTL' on [the open plastic sachet] xxx."[24] Even the Solicitor General, in his Comment, stated that "JO3 Leonor confiscated the seized plastic sachet with marijuana and marked it with his initial 'GTL'."[25]
More confusion arises as the foregoing markings starkly differ from the common statement in the Information and the dispositive portion of the RTC decision which say that petitioner was found in possession of one (1) opened transparent plastic sachet marked as "GTL-07-10-14."[26] Upon further perusal of the records, the Chain of Custody[27] and Inventory[28] sheets showed another glaring discrepancy because the documentary exhibits indicated that the plastic sachet was marked as "GTL III 07-10-14."
"Marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized. Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference.[29] Marking of the seized item must not only be prompt but proper as well, since marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, obviating switching, "planting," or contamination of evidence.[30]
The markings as appearing in the Information, the inventory, the decisions of the RTC and the CA, as well as in the allegation of facts by the parties, are different. Needless to say, the fact that the prosecution, the RTC, and the appellate court themselves could not agree on what the true marking on the seized item was already casts a shadow of doubt on the integrity and identity of the item seized—the corpus delicti of the offense charged against petitioner. Thus, there is no moral certainty that the substance taken from petitioner is the same dangerous drug submitted to the laboratory and the trial court.[31]
None of the required witnesses under
RA 9165, as amended by RA 10640,
were present during the marking,
photographing and inventory of the
seized item
As part of the chain of custody procedure, RA 9165 requires that the marking, physical inventory, and photographing of the seized items be conducted immediately after their seizure and confiscation. The law further requires that the inventory and photographing be done in the presence of the accused or the person from whom the items were seized, or his/her representative or counsel, as well as certain required witnesses. Upon effectivity of the amendments introduced by RA 10640,[32] these required witnesses are an elected public official and a representative of the National Prosecution Service OR the media.[33]
The prosecution failed to establish the crucial presence of these witnesses mandated by law. The inventory sheet indicated that the witnesses were, all jail officers.[34] Furthermore, as testified by JO3 Leonor:
In this case, the prosecution failed to provide sufficient justification for the failure of the arresting officers to secure the required witnesses under the law. The prosecution had sufficient opportunity during trial to explain the procedural lapses but glaringly left the same unacknowledged and unjustified. Such omission casts suspicion on the corpus delicti of the offense charged, thereby creating reasonable doubt.[37]
In sum, the BJMP personnel failed to observe the detailed procedures for the conduct of a strip search laid down in BJMP SOP No. 2010-05. In light of the Court's ruling in Tuates, such failure to follow the procedures in BJMP SOP No. 2010-05 negates the. presumption of regularity in the performance of official duties. Moreover, the contradictions as to the markings, as well as the lack of required witnesses, cast grave doubt on the identity and integrity .of |the items seized from petitioner. With these findings, the constitutional presumption of the innocence of the petitioner must prevail, and he must thup be acquitted.
WHEREFORE, in view of the foregoing, the Petition is hereby GRANTED. The 12 July 2018 Decision and 12 September 2018 Resolution of the Court of Appeals in CA-G.R. CR No. 38852 are REVERSED and SET ASIDE. Accordingly, petitioner Manuel Quilet y Fajardo @ "Tonting" is ACQUITTED of the offense charged on the ground of reasonable doubt. He is ORDERED IMMEDIATELY RELEASED from detention, unless he is detained for any other lawful cause.
The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt,
The Regional Trial Court is DIRECTED to turn over the seized marijuana to the Dangerous Drugs Board for destruction in accordance with law.
Let entry of judgment be issued immediately.
SO ORDERED.
Leonen, (Chairperson), Gesmundo, Carandang, and Gaerlan, JJ., concur.
[1] People v. Dayon, G.R. No. 229669, 27 November 2019.
[2] Rollo, pp. 33-44; penned by Associate Justice Nina G. Antonio-Valenzuela, and concurred in by Associate Justices Priscilla J. Baltazar-Padilla (now a Member of this Court) and Carmelita Salandanan Manahan of the Special Sixteenth Division, Court of Appeals, Manila.
[3] Id. at 46-47.
[4] Id. at 68-75; penned by Presiding Judge Caroline Rivera-Colasito.
[5] Id. at 34.
[6] Id.
[7] Id. at 34-35; CA Decision, pp. 2-3; Footnotes omitted.
[8] Id.
[9] Id at 35; CA Decision, p. 3; Footnotes omitted.
[10] Id.
[11] Id. at 36; CA Decision, p. 4.
[12] Id. at 39; CA Decision, p. 7.
[13] Id. at 42-43; CA Decision, pp, 10-11; Footnotes omitted.
[14] Id. at 47.
[15] Id. at 21-22.
[16] G.R. No. 230789, 10 April 2019, penned by Associate Justice Alfredo Benjamin S. Caguioa.
[17] BJMP SOP No. 2010-05 (2010), II. Purpose and Scope.
[18] See Definition of Terms, BJMP SOP No. 2010-05.
[19] Section VI for the Conduct of Pat/Frisk/Rub Search for Visitors; Section VII for the Conduct of Strip Search for Visitors; and Section VIII for the Conduct of Visual Body Cavity Search for Visitors, BJMP SOP No. 2Q10-05.
[20] Paragraph 3, of Section VI, Guidelines in the Conduct of Pat/Frisk/Rub Search for Visitors, BJMP SOP No. 2010-05.
[21] Supra note 13.
[22] Rollo, p. 34; CA Decision, p. 2.
[23] Id at 42; CA Decision, p. 10.
[24] Id. at 71; RTC Decision, p .4.
[25] Id. at 110.
[26] Id. at 68.
[27] Records, p. 21.
[28] Id. at 37.
[29] People v. Dahil, 750 Phil.L 212-239 (2015); G.R. No. 212196, 12 January 2015, 745 SCRA 221,241.
[30] People v. Ismael, 806 Phil 21-38 (2017); G.R. No. 208093, 20 February 2017, 818 SCRA 122 citing People v. Coreche, 612 Phil. 1238,1 244 (2009); 596 SCRA 350, 14 August 2009.
[31] People v. Climaco, 687 Phil. 593-610 (2012); G.R. No. 199403, 13 June 2012.
[32] In People v. Gutierrez (G.R. No. 236304, 05 November 2018, 884 SCRA 276), this Court noted that RA 10640 was approved on 15 July 2014, and published on 23 July 2014 in The Philippine Star (Vol. XXVIII, No. 359, Metro Section, p. 21) and the Manila Bulletin (Vol. 499, No. 23, World News Section, p. 6). Thus, it became effective 15 days thereafter or on 07 August 2014, pursuant to Section 5 of the law,
[33] Supra note 1.
[34] Records, p. 37.
[35] TSN, 17 September 2015, pp. 9-10.
[36] Ramos v. People, G.R. No. 233572. 30 July 2018, 874 SCRA 595, 599.
[37] Supra note 1.
Before this Court is a Petition for Review on Certiorari, seeking reversal of the 12 July 2018 Decision[2] and 12 September 2018 Resolution[3] of the Court of Appeals (CA) in CA-G.R. CR No. 38852, which affirmed the 17 May 2016 Decision[4] of Branch 23, Regional Trial Court (RTC) of Manila in Criminal Case No. 14-309123, finding petitioner Manuel Quilet y Fajardo @ "Tonting" (petitioner) GUILTY of violating Section 11(3), Article II of Republic Act No. (RA) 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002, as amended."
Petitioner was indicted through an Information, the accusatory portion of which reads:
That on or about October 07, 2014, in the City of Manila, Philippines, the said accused not having been authorized by law to possess any dangerous drug, did[,] then and there[,] willfully, unlawfully[,] and knowingly have in his possession and under his custody and control one (1) opened transparent plastic sachet[,] marked as "GTL 07-10-14[,]" containing ZERO POINT ONE FIVE SEVEN TWO (0.1572) of dried Marijuana leaves and fruiting tops, a dangerous drug.Upon arraignment, petitioner pleaded not guilty. Pre-trial and trial on the merits then ensued.[6]
Contrary to law.[5]
According to the prosecution's version of the facts,[7] petitioner went to the Manila City Jail on 07 October 2014 to visit his boyfriend, who was then an inmate therein. Prior to petitioner's entry into the premises, Jail Office 3 Gregorio Leonor III (JO3 Leonor) inspected his belongings and subjected him to a body search.
JO3 Leonor asked petitioner, who was wearing a bra, to pull up his shirt and to remove the bra's padding. An inspection of the padding revealed an open plastic sachet containing suspected dried marijuana leaves. Thereafter, JO3 Leonor confiscated the plastic sachet with its contents and marked it with "GTL 04-10-14." He informed petitioner of the latter's rights as an accused, and turned over the seized items to investigator JO2 Edgar P. Taoc (JO2 Taoc) for proper disposition.[8]
Pursuant thereto, JO2 Taoc prepared the Letter Referral for Inquest, Booking Sheet and Arrest Report, Chain of Custody Form, Letter Request for Laboratory Examination, and Incident Report and Turn Over. JO2 Taoc also conducted the inventory in the presence of JO3 Dominador Noe, Jr. (JO3 Noe), who also took photographs of the confiscated items. Later, JO2 Taoc delivered the seized items to the PDEA crime laboratory and handed them to Forensic Chemist Richard M. Solis. The laboratory examination confirmed the seized items to be marijuana.[9]
Petitioner denied the charges against him. He claimed that on 07 October 2014, he arrived at the Manila City Jail to visit his boyfriend. JO3 Leonor frisked him and asked him to pull up his shirt. JO3 Leonor supposedly found the small plastic sachet containing marijuana in the padding of his bra. However, petitioner claimed that he did not know who owned the plastic sachet containing marijuana recovered from his person. Petitioner argued he was a regular visitor at the Manila City Jail. Hence, it would be illogical for petitioner to bring prohibited items because he knew that a body search is conducted before a visitor is allowed entry.[10]
After trial on the merits, the RTC rendered its 17 May 2016 Decision, convicting petitioner of the offense charged. The trial court concluded that the prosecution had successfully proven the elements needed to convict petitioner for illegal possession of dangerous drugs. The dispositive portion of the Decision reads:[11]
WHEREFORE, premises considered, accused, MANUEL QUILET y FAJARDO @ "Tonting" is hereby found GUILTY of the crime charged and is sentenced to suffer the indeterminate penalty of imprisonment of Thirteen (13) years and one (1) day, as minimum to Fourteen (14) years, as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).Petitioner appealed his conviction to the CA.
The one (1) opened transparent plastic sachet marked as "GTL-07-10-14" containing ZERO POINT ONE FIVE SEVEN TWO (0.1572) of dried Marijuana leaves and fruiting tops, subject of the instant case, is hereby forfeited in favor of the State and ordered destroyed immediately pursuant to existing Rules. Costs de oficio.
SO ORDERED.
On 12 July 2018, the CA affirmed the RTC's ruling, as it agreed that the prosecution proved all the elements of illegal possession of dangerous drugs. The CA likewise found petitioner's argument on the supposed irregularity of the strip search performed by JO3 Leonor unmeritorious, holding thus:[12]
JO3 Leonor III performed the frisk and body search in accordance with BJMP SOP No. 2010-05, which states that all visitors allowed entry into the jail must be required to submit to a thorough body search to prevent entry of contraband inside the jails. Searches must not be more extensive than necessary to determine the existence of contraband believed to be concealed on the subject of the person.Furthermore, the CA agreed with the RTC that contrary to petitioner's argument, the identity and integrity of the seized dangerous drug had not been compromised despite the police officers' non-compliance with the requirements of Section 21, RA9165.[13]
Petitioner sought reconsideration, but the same was denied by the CA in its 12 September 2018 Resolution.[14]
Hence, the present petition.
Petitioner raises the following issues:
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE PETITIONER'S CONVICTION DESPITE THE INADMISSIBILITY OF THE ALLEGEDLY CONFISCATED DRUG FOR BEING FRUIT OF THE POISONOUS TREE.The controversy boils down to whether or not the arresting officers observed the proper procedure in the handling and custody of the seized drugs, ultimately convicting petitioner for the crime of illegal possession of dangerous drugs.II.
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE PETITIONER'S CONVICTION DESPITE THE IRREGULARITIES IN THE MARKING AND CONDUCT OF THE INVENTORY OF THE ALLEGEDLY CONFISCATED ITEM.III
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE PETITIONER'S CONVICTION DESPITE THE FAILURE OF THE PROSECUTION TO OVERCOME THE PRESUMPTION OF INNOCENCE AFFORDED TO PETITIONER BY THE CONSTITUTION.[15]
We find the petition meritorious.
Central to the proper resolution of this case are the provisions of BJMP Standard Operating Procedure (SOP) No. 2010-05, Our previous ruling in the case of Tuates v. People of the Philippines,[16] and a painstaking look at the chain of custody of the item supposedly seized from petitioner.
The arresting officers failed to
observe the prescribed procedure in
searching or frisking petitioner
The search of the persons of jail visitors and of their belongings fall under the general rubric of "institutional security." This is clearly spelled out in the "Background/Rationale" of BJMP SOP No. 2010-05, which reads:
The proliferation of contraband in jail facilities is a perennial problem that the BJMP is confronting since its inception. Contraband in the hands of inmates jeopardize jail security and hamper rehabilitation programs.The avowed purpose and scope of the SOP is "to provide adequate safeguards against the introduction of contraband into jail facilities and to establish guidelines for different types of searches."[17]
The use of various types of searches shall be necessary to protect the safety of visitors, inmates[,] and personnel. It shall be used to detect and secure contraband with the aim of safeguarding the security of the facility.xxxx
While the conduct of various types of searches is indispensible [sic] in our campaign to prevent the entry of contraband, it should be reasonably implemented with utmost care and fairness to protect, the rights of the subject[,] as well as to shield the jail personnel from harassment complaints.
Contraband, whose introduction into jail facilities is proscribed by the SOP, is classified into: (1) "illegal contraband," which is unlawful in itself and not because of some extraneous circumstances, such as dangerous drugs, weapons, potential weapons, explosives; and (2) "merely prohibited and nuisance contraband," which may not be classified as illegal under the law but is forbidden by jail rules, such as cellphones, intoxicating liquor, cigarettes, and pornographic materials.[18]
BJMP SOP No. 2010-05 also lays down certain general policies, two (2) of which are relevant to this case:
These general policies reiterate that the search of both the belongings and persons of jail visitors serves these main purposes: institutional security and as a condition for admission of a visitor into the jail facility.
- All visitors before being allowed entry into the jail must be requested to submit the things they carry to a thorough inspection and a thorough body search to prevent the entry of contraband/s in our jails.
- . xxxx All visitors who refuse to undergo search and inspection shall be refused entry into the jail.
The types of body searches defined and regulated by BJMP SOP No. 2010-05 are classified from the least to the most intrusive: (1) pat/frisk and rub body search; (2) strip search; and, (3) visual body cavity search. They are defined in BJMP SOP No. 2010-05 as follows:
Pat/Frisk Search - is a search wherein the officer pats or squeezes the subject's clothing to attempt to detect contraband/s. For same gender searches the Pat/Frisk search is normally accomplished in concert with Rub Search.Each type of body search is covered by procedures discussed in great detail in the SOP.[19] The same document likewise directs when a search may escalate from a pat/frisk/rub search to a strip search:[20]
Rub Search - is a search wherein the officer rubs and/or pats the subject's body over the clothing, but in a more intense and thorough manner. In a rub search, the genital, buttocks, and breast (of females) areas are carefully rubbed - areas which are not searched in a frisk/pat search. Rub searches shall not be conducted on cross-gender individuals, (emphasis supplied)
Strip Search - is a search which involves the visual inspection of disrobed or partially disrobed subject.
Visual Body Cavity Search - is a search which involves the inspection of the anus and/or vaginal area, generally requiring the subject to bend over and spread the cheeks of the buttocks; to squat and/or otherwise expose body cavity orifices.
If during the pat/frisk/rub search the jail officer develops probable cause that contraband is being hidden by the subject who is not likely to be discovered, the Jail Officer shall request for a conduct of strip search/visual body cavity search.In this case, JO3 Leonor asked petitioner to pull up his shirt, thereby disrobing him partially. As such, this search falls under the second type — the Strip Search - or a search involving the "visual inspection of disrobed or partially disrobed subject." It should be noted, however, that there is nothing on record that petitioner acted in a suspicious manner which could have allowed JO3 Leonor to "develop probable cause," and escalate the search from pat/frisk/rub to strip search.
Even granting arguendo that such probable cause existed in said scenario, JO3 Leonor nevertheless should have followed the detailed guidelines for a Strip Search, as laid down in Section VII of BJMP SOP No. 2010-05, herein quoted in full:
VII. Guidelines in the Conduct of Strip Search for Visitors
The conduct of strip search shall be done provided all the following conditions are met:
1. All strip search shall be conducted with the knowledge of and directed by the Jail Warden or in his absence by the Deputy Warden/ Jail Officer of the Day. A Strip Search/ Visual Body Cavity Search Authorization (SSVBCSA) (Annex A) shall be accomplished by the searcher for this purpose. The SSVBCSA Form shall include information that there is probable cause that contraband is being hidden by the subject or subject to be strip searched is suspected of bringing contraband inside the jail. It shall particularly state the source of information, if known, and the contraband to be brought in.
2. The visitor agrees to be strip searched which shall be in writing to shield the jail officer performing the search from harassment complaints. For this purpose, the Waiver of Right on Strip Search / Visual Body Cavity Search Form (Annex B) shall be signed by the visitor. It shall be duly explained by the jail personnel performing the search and should be understood by the subject. If the subject refuses, he/she will not be allowed to visit, (emphases supplied)
3. All strip search must be done in the confidentiality of an enclosed space. This area must restrict the possibility of visual access by person(s) not involved in the search.
4. To perform a strip search the jail officer shall accomplish the following:5. If during the course of the strip search, the officer develops probable cause that contraband is concealed in an area not readily visible during the strip search, the officer shall proceed on conducting Visual Body Cavity Search.
- Direct the subject to remove his/her clothing and hand the clothing to the searcher for inspection.
- Clothing shall be examined by touch, using the squeeze and rub method which crushes every part of the clothing.
- Articles should be scanned for bulges and signs of openings or freshly sewn areas. Linings should not be overlooked.
- The searcher shall have the subject perform the following measures:
- Hold his/her hands out in front of his/her body with fingers spread;
- Turn his/her hands over showing the officer each side;
- Raise his/her arms over head allowing the officer to view the subject's underarms;
- Shake out his/her hair;
- Open his/her mouth with head tilted back. Lifting his/her tongue;
- Have the subject lift his/Tier feet so that the soles and spaces between the toes can be examined carefully.
- Inspection of any covered wounds, casts, false teeth, prosthesis, etc. shall be conducted with the assistance of a jail doctor or nurse.
- After completion of the search, the officer shall return the clothing to the subject and allow the subject to redress.
From the foregoing, it is clear that the BJMP personnel failed to follow the the procedure laid down in BJMP SOP No. 2010-05. The prosecution did not present evidence that the Jail Warden or Jail Officer of the Day had knowledge and directed the conduct of a strip search. The required Authorization (Annex A) was not filled up, and the Waiver of Right Form (Annex B) was not given to petitioner to sign before he was made to pull up his shirt.
In Tuates v. People,[21] the Court held that -
xxx To emphasize anew, BJMP-SOP 2010-05 requires pat/frisk searches and rub searches to be done over the jail visitor's clothing Bundang admitted twice that what she instead did was to raise Tuates' shirt. This she cannot do, for a strip search may be resorted to only "[i]f during the pat/frisk/rub search[,] the jail officer develops probable cause that contraband is being hidden by the subject which is not likely to be discovered." Further, a strip search may only be done after the visitor agrees in writing, which is a requirement to shield the jail officer performing the search from harassment complaints.Following Tuates v. People, the arresting officers could not be accorded the benefit of the presumption of regularity in the performance of their duty. The foregoing findings alone are enough to acquit petitioner based on reasonable doubt. However, after going over the records with a fine-toothed comb, the Court found even more fatal flaws in the prosecution's evidence.
xxx [Since] the search conducted by Bundang was clearly not in accordance with BJMP-SOP 2010-05. From this alone, the presumption that she performed her duties in a regular manner was thus unmistakably rebutted.
There were material discrepancies in
the marking of the seized items
In summing up the evidence for the prosecution, the CA Decision stated that "JO3 Leonor III confiscated the plastic sachet and its contents and marked it with 'GTL 04-10-14' xxx."[22] But in a later portion of the same Decision, the CA stated a material contradiction: "JO3 Leonor III marked the seized item with 'GTL,' and turned over the seized item to investigating officer, JO2 Taoc xxx."[23]
The trial court itself, in its own summary of the prosecution evidence, stated that JO3 Leonor "placed the markings 'GTL' on [the open plastic sachet] xxx."[24] Even the Solicitor General, in his Comment, stated that "JO3 Leonor confiscated the seized plastic sachet with marijuana and marked it with his initial 'GTL'."[25]
More confusion arises as the foregoing markings starkly differ from the common statement in the Information and the dispositive portion of the RTC decision which say that petitioner was found in possession of one (1) opened transparent plastic sachet marked as "GTL-07-10-14."[26] Upon further perusal of the records, the Chain of Custody[27] and Inventory[28] sheets showed another glaring discrepancy because the documentary exhibits indicated that the plastic sachet was marked as "GTL III 07-10-14."
"Marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized. Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference.[29] Marking of the seized item must not only be prompt but proper as well, since marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, obviating switching, "planting," or contamination of evidence.[30]
The markings as appearing in the Information, the inventory, the decisions of the RTC and the CA, as well as in the allegation of facts by the parties, are different. Needless to say, the fact that the prosecution, the RTC, and the appellate court themselves could not agree on what the true marking on the seized item was already casts a shadow of doubt on the integrity and identity of the item seized—the corpus delicti of the offense charged against petitioner. Thus, there is no moral certainty that the substance taken from petitioner is the same dangerous drug submitted to the laboratory and the trial court.[31]
None of the required witnesses under
RA 9165, as amended by RA 10640,
were present during the marking,
photographing and inventory of the
seized item
As part of the chain of custody procedure, RA 9165 requires that the marking, physical inventory, and photographing of the seized items be conducted immediately after their seizure and confiscation. The law further requires that the inventory and photographing be done in the presence of the accused or the person from whom the items were seized, or his/her representative or counsel, as well as certain required witnesses. Upon effectivity of the amendments introduced by RA 10640,[32] these required witnesses are an elected public official and a representative of the National Prosecution Service OR the media.[33]
The prosecution failed to establish the crucial presence of these witnesses mandated by law. The inventory sheet indicated that the witnesses were, all jail officers.[34] Furthermore, as testified by JO3 Leonor:
The absence of the witnesses required by law does not per se render the confiscated items inadmissible. However, a justifiable reason for such absence, or a showing of any genuine and sufficient effort to secure the presence of the required witnesses, must be adduced. The prosecution must show that earnest efforts were employed in contacting the witnesses enumerated in the law. Mere statements of unavailability, absent actual serious attempts to contact the required witnesses, are unacceptable as justifiable grounds for non-compliance.[36]
Q: And you also conducted the inventory at the gate? A: Yes sir. Q: Is JO3 Edna Iglesia a barangay elected official? A: No sir. Q: How about JO3 Dominador Noe? A: No sir. Q: How about Manuel Quilet is he a barangay official? A: No sir. Q: No barangay official and you did not call any barangay official? A: At that time we looked for barangay official. Q: That is 2:00 o'clock in the afternoon. How about going to the Office of the Prosecutor to ask for a witness, did you do that, calling the Office of the Prosecutor? A: It was already night time when we went to the Fiscal's Office. THE COURT Q: Officer Leonor, when you marked the sachet of marijuana, who were present? A: The accused and my co-employees. Q: You are referring to Edna Iglesia, Dominador Noe, Inspector Vargas? A: Yes Your Honor. Q: They were the ones who witnessed the inventory? A: Yes ma'am.[35]
In this case, the prosecution failed to provide sufficient justification for the failure of the arresting officers to secure the required witnesses under the law. The prosecution had sufficient opportunity during trial to explain the procedural lapses but glaringly left the same unacknowledged and unjustified. Such omission casts suspicion on the corpus delicti of the offense charged, thereby creating reasonable doubt.[37]
In sum, the BJMP personnel failed to observe the detailed procedures for the conduct of a strip search laid down in BJMP SOP No. 2010-05. In light of the Court's ruling in Tuates, such failure to follow the procedures in BJMP SOP No. 2010-05 negates the. presumption of regularity in the performance of official duties. Moreover, the contradictions as to the markings, as well as the lack of required witnesses, cast grave doubt on the identity and integrity .of |the items seized from petitioner. With these findings, the constitutional presumption of the innocence of the petitioner must prevail, and he must thup be acquitted.
WHEREFORE, in view of the foregoing, the Petition is hereby GRANTED. The 12 July 2018 Decision and 12 September 2018 Resolution of the Court of Appeals in CA-G.R. CR No. 38852 are REVERSED and SET ASIDE. Accordingly, petitioner Manuel Quilet y Fajardo @ "Tonting" is ACQUITTED of the offense charged on the ground of reasonable doubt. He is ORDERED IMMEDIATELY RELEASED from detention, unless he is detained for any other lawful cause.
The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt,
The Regional Trial Court is DIRECTED to turn over the seized marijuana to the Dangerous Drugs Board for destruction in accordance with law.
Let entry of judgment be issued immediately.
SO ORDERED.
Leonen, (Chairperson), Gesmundo, Carandang, and Gaerlan, JJ., concur.
[1] People v. Dayon, G.R. No. 229669, 27 November 2019.
[2] Rollo, pp. 33-44; penned by Associate Justice Nina G. Antonio-Valenzuela, and concurred in by Associate Justices Priscilla J. Baltazar-Padilla (now a Member of this Court) and Carmelita Salandanan Manahan of the Special Sixteenth Division, Court of Appeals, Manila.
[3] Id. at 46-47.
[4] Id. at 68-75; penned by Presiding Judge Caroline Rivera-Colasito.
[5] Id. at 34.
[6] Id.
[7] Id. at 34-35; CA Decision, pp. 2-3; Footnotes omitted.
[8] Id.
[9] Id at 35; CA Decision, p. 3; Footnotes omitted.
[10] Id.
[11] Id. at 36; CA Decision, p. 4.
[12] Id. at 39; CA Decision, p. 7.
[13] Id. at 42-43; CA Decision, pp, 10-11; Footnotes omitted.
[14] Id. at 47.
[15] Id. at 21-22.
[16] G.R. No. 230789, 10 April 2019, penned by Associate Justice Alfredo Benjamin S. Caguioa.
[17] BJMP SOP No. 2010-05 (2010), II. Purpose and Scope.
[18] See Definition of Terms, BJMP SOP No. 2010-05.
[19] Section VI for the Conduct of Pat/Frisk/Rub Search for Visitors; Section VII for the Conduct of Strip Search for Visitors; and Section VIII for the Conduct of Visual Body Cavity Search for Visitors, BJMP SOP No. 2Q10-05.
[20] Paragraph 3, of Section VI, Guidelines in the Conduct of Pat/Frisk/Rub Search for Visitors, BJMP SOP No. 2010-05.
[21] Supra note 13.
[22] Rollo, p. 34; CA Decision, p. 2.
[23] Id at 42; CA Decision, p. 10.
[24] Id. at 71; RTC Decision, p .4.
[25] Id. at 110.
[26] Id. at 68.
[27] Records, p. 21.
[28] Id. at 37.
[29] People v. Dahil, 750 Phil.L 212-239 (2015); G.R. No. 212196, 12 January 2015, 745 SCRA 221,241.
[30] People v. Ismael, 806 Phil 21-38 (2017); G.R. No. 208093, 20 February 2017, 818 SCRA 122 citing People v. Coreche, 612 Phil. 1238,1 244 (2009); 596 SCRA 350, 14 August 2009.
[31] People v. Climaco, 687 Phil. 593-610 (2012); G.R. No. 199403, 13 June 2012.
[32] In People v. Gutierrez (G.R. No. 236304, 05 November 2018, 884 SCRA 276), this Court noted that RA 10640 was approved on 15 July 2014, and published on 23 July 2014 in The Philippine Star (Vol. XXVIII, No. 359, Metro Section, p. 21) and the Manila Bulletin (Vol. 499, No. 23, World News Section, p. 6). Thus, it became effective 15 days thereafter or on 07 August 2014, pursuant to Section 5 of the law,
[33] Supra note 1.
[34] Records, p. 37.
[35] TSN, 17 September 2015, pp. 9-10.
[36] Ramos v. People, G.R. No. 233572. 30 July 2018, 874 SCRA 595, 599.
[37] Supra note 1.