The Case
This appeal assails the following dispositions of the Court of Appeals in CA-G.R. CR-HC No. 08244 entitled
People of the Philippines v. SPO1 Alexander Estabillo y Palara:
- Decision[1] dated April
26, 2019 affirming the conviction of SPO1 Alexander Estabillo y Palara
for violation of Sections 5 and 11 of Republic Act No. (RA) 9165; and
- Resolution[2] dated October 9, 2019 denying reconsideration.
Antecedents
Under two (2) separate Informations dated July 13, 2010, appellant was charged with violation of Sections 5 and 11, RA 9165,
[3] thus:
[4]
Criminal Case No. 17172-D-PSG
That on or about June 14, 2010, at Barangay Ugong, Pasig City and within
the jurisdiction of this Honorable Court, the above-named accused,
without having been authorized by law, did then and there willfully,
unlawfully, knowingly and feloniously have in his possession, custody,
and control the following: two (2) bricks sealed with packaging tape,
each weighing more or less 1078.89 grams and 1041.57 grams of cocaine, a
dangerous drug, in violation of the above-cited law.
CONTRARY TO LAW.
Criminal Case No. 17173-D-PSG
That on or about June 14, 2010, at Barangay Ugong, Pasig City and within
the jurisdiction of this Honorable Court, the above-named accused,
without having been authorized by law, did then and there willfully,
unlawfully, knowingly and feloniously sell, trade, deliver, give away to
another and distribute to SPO1 Leonardo G. Taldo, of the Philippine
National Police-Anti-Illegal Drugs Special Operations Task Force
(PNPAIDSOTF), who acted as poseur buyer, two (2) bricks sea led with
packaging tape, each weighing more or less 1046.22 grams and 1065.75
grams of cocaine, a dangerous drug, in violation of the above-cited law.
CONTRARY TO LAW.
On arraignment, appellant pleaded
not guilty to both charges.
[5] Trial ensued.
During the trial, forensic chemist PSI Mark Alain B. Ballesteros (PSI Ballesteros), SPO2 Leonardo Taldo (SPO2 Taldo),
[6] PO3 Lawrence Perida (PO3 Perida), SPO3 Miguel Ngo (SPO3 Ngo), and SPO3 Glenn Marlon Caluag (SPO3 Caluag)
[7]
testified for the prosecution. Meanwhile, appellant, his daughter Carla
Mendoza (Carla), and Dennis Perillo (Perillo) of GMA 7 News and Current
Affairs testified for the defense.
[8]
Version of the Prosecution
On June 13, 2010, P/SSupt. Eduardo P. Acierto (P/SSupt. Acierto)
received a report from a confidential informant regarding the drug
activities of a certain "Alex", a member of the Philippine National
Police (PNP) assigned at the Ninoy Aquino International Airport.
According to the confidential informant, "Alex" operated in Makati City
and had in his possession a huge amount of cocaine. Acting on the
information, P/SSupt. Acierto instructed Police Superintendent Ismael G.
Fajardo, Jr. (P/Supt. Fajardo) to conduct a buy-bust operation against
"Alex". Thus, P/Supt. Fajardo designated Police Inspector Jay James
Nepomuceno as the team leader, SPO2 Taldo as the poseur-buyer, and SPO3
Ngo and PO3 Perida as the arresting officers. Meanwhile, the
confidential informant arranged a test buy with "Alex" for the following
day.
[9]
On June 14, 2010, around 8:20 in the evening, the buy bust team,
together with the confidential informant arrived at A Venue along Makati
Avenue, Makati City. There, the confidential informant introduced SPO2
Taldo to "Alex", later identified as appellant Estabillo. Appellant
informed SPO2 Taldo that the price of cocaine was P1,500,000.00 per
kilo. SPO2 Taldo ordered four (4) kilos of cocaine and asked for a
sample. Appellant gave SPO2 Taldo a gram of suspected cocaine, for which
the latter paid P1,500.00. Before they separated, they agreed that
appellant would contact the confidential informant once the four (4)
kilos of cocaine becomes available.
[10]
SPO2 Taldo brought the sample to the PNP Crime Laboratory for examination which yielded positive for cocaine.
[11]
On June 15, 2010, around 10:30 in the morning, SPO2 Taldo received news
from the confidential informant that the four (4) kilos of cocaine he
ordered from appellant was already available. Too, SPO2 Taldo was to pay
appellant P6,000,000.00 at Mercury Drugstore, Las Fiestas Drive,
Frontera Verde, Barangay Ugong, Pasig City at 11 o'clock that evening.
Thus, the buy bust team prepared for the operation.
[12]
Around 6 o'clock in the evening, P/Supt. Fajardo presided over a final
briefing at the PNP-AIDSOTF. He gave SPO2 Taldo six (6) P500.00 bills
dusted with ultraviolet powder. The bills were placed on top of 60
bundles of boodle money inside a striped red paper bag. The buy bust
team agreed that SPO2 Taldo would dial SPO3 Ngo's mobile number once the
transaction had been consummated. They also coordinated with the
Philippine Drug Enforcement Agency (PDEA) after the final briefing.
[13]
Around 9 o'clock in the evening, the team proceeded to the area of
operation. About two (2) hours later, appellant arrived on board a white
and silver Mitsubishi Strada with plate number XDH 474. Appellant
stopped in front of SPO2 Taldo and told the latter to board the front
passenger seat of his car.
[14]
Inside the vehicle, appellant handed to SPO2 Taldo a maroon-brown
shoebox labeled Otto containing two (2) bricks of suspected cocaine. In
exchange, SPO2 Taldo handed appellant the boodle money. Before appellant
could start counting its contents, SPO2 Taldo dialed SPO3 Ngo's number.
[15]
The other members of the team rushed to the vehicle and arrested
appellant. PO3 Perida recovered the boodle money from appellant while
SPO2 Taldo proceeded to mark the two (2) bricks of suspected cocaine in
the Otto shoebox with LPP 06152315 2010 and LPP1 06152315 2010 together
with his signature.
[16] Upon
further search of the vehicle, PO3 Perida recovered a yellow Mario
D'Boro box containing two (2) more bricks of suspected cocaine from
behind the driver seat which he marked LPP2 06152315 2010 and LPP3
06152315 2010 with his signature.
[17] The seized items were then placed in front of the vehicle for the witnesses to see.
[18]
The marking was done in the presence of Barangay Kagawad Felix Santos
(Kagawad Santos) and two (2) representatives from the media, Erika
Tapalla (Tapalla) from ABC 5 and Perillo from GMA 7. An inventory of the
seized items was then prepared in the presence of appellant and the
witnesses. Photographs were taken during the marking and inventory. No
prosecutor from the Department of Justice (DOJ) was available to witness
the inventory that night.
[19]
On June 16, 2010, around 10'clock in the morning, after the marking and
inventory, SPO2 Taldo and PO3 Perida turned over the seized items to the
investigator SPO3 Caluag. Upon concluding his investigation in half an
hour, SPO3 Caluag turned over the two (2) boxes containing two (2)
bricks each of suspected cocaine to PCI Paul Ed C. Ortiz (PCI Ortiz)
[20]
of the PNP Crime Laboratory. All these happened at the place of arrest.
Subsequently, at 2:55 in the morning, PCI Ortiz turned over the
suspected cocaine to PSI Ballesteros of the PNP Crime Laboratory for
testing. Per Chemistry Report No. D-43-10, all four (4) bricks tested
positive for cocaine.
[21]
Version of the Defense
Appellant denied the charges.
[22]
On June 15, 2010, around 8 o'clock in the evening, he was with his
daughter Carla at SM Marikina. While they were about to leave the
parking area, he noticed three (3) manned vehicles parked near his car
but didn't think much of it. When they got out of the parking area,
however, the three (3) vehicles he saw earlier started following them.
Worried, he dropped off his daughter at the corner of Ligaya and Marcos
Highway and proceeded to Ortigas.
[23]
The three (3) vehicles continued following him, thus, he decided not to
pass through the flyover and go to the well-lighted area of Tiendesitas
instead. Suddenly, one of the vehicles cut his path and blocked his way.
The passengers of the three (3) vehicles alighted, poked their guns at
him, and dragged him on board a grey Mitsubishi Lancer. From inside, he
saw that some of those who were following him had opened his vehicle and
were searching it. He also noticed that other personalities arrived at
the scene, including some members of the media. After some time, he was
dragged out of the Mitsubishi Lancer and brought in front of his vehicle
where he saw various items placed on top of the hood. He denied
ownership of said items.
[24]
Ruling of the Trial Court
By Decision
[25] dated December 7, 2015, the Regional Trial Court, Branch 151, Pasig City rendered a verdict of conviction, thus:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. Re: Criminal Case No. 17173-D. this Court finds the accused, ALEXANDER ESTABILLO y PALARA, GUILTY
beyond reasonable doubt of the crime of violation of Section 5, Article
II of Republic Act No. 9165, and accordingly, hereby sentences him to
suffer the penalty of LIFE IMPRISONMENT and pay a fine in the amount of Ten Million pesos (P10,000,000.00).
2. Re: Criminal Case No. 17172-D, this Court finds the accused, ALEXANDER ESTABILLO y PALARA, GUILTY
beyond reasonable doubt of the crime of violation of Section 11,
Article II of Republic Act No. 9165, and accordingly, hereby sentences
him to suffer the penalty of LIFE IMPRISONMENT and pay a fine in the amount of Ten Million pesos (P10,000,000.00).
The Officer-In-Charge/Branch Clerk of Court is ordered to transfer the
possession and custody of the dangerous drugs subject of these cases to
the Philippine Drug Enforcement Agency for its disposal in accordance
with law.
SO ORDERED.
It held that the elements of illegal sale of dangerous drugs were all
present, considering that appellant was arrested following a buy bust
operation. Too, the arresting officers recovered two (2) bricks of
cocaine at the back of appellant's driver seat following his lawful
arrest. Thus, appellant was also convicted of illegal possession of
dangerous drugs. The trial court further held that the prosecution
sufficiently established all four links in the chain of custody.
[26]
The trial court denied reconsideration on February 4, 2016.
[27]
Proceedings Before the Court of Appeals
On appeal,
[28] appellant faulted the trial court for rendering a verdict of conviction. He argued:
First. He was illegally arrested. The arresting officers did not
have probable cause to arrest him since at that time, they were still
unaware of whether the bricks inside the Otto shoebox truly contained
cocaine. None of the arresting officers had personal knowledge of the
actual contents of the shoebox.
[29]
Second. The arresting officers did not have reason to arrest
appellant other than SPO2 Taldo's call to SPO3 Ngo. Said call was
insufficient to establish probable cause for his warrantless arrest.
[30]
Third. The prosecution failed to show that he dusted positive for
ultraviolet powder after he allegedly took possession of the buy bust
money.
[31]
Fourth. GMA 7 reporter Perillo denied seeing any actual cocaine during his coverage of the incident.
[32]
Fifth. There was no DOJ representative present during the inventory and photograph.
[33]
Sixth. There is doubt on whether items examined by PSI
Ballesteros were the same items seized from appellant. For records show
that there were two (2) requests for laboratory examination made
concerning the same items allegedly seized from him. On the one hand,
PSI Ballesteros testified that PCI Ortiz delivered the seized items to
him. On the other hand, one of the requests for laboratory examination
stated that the seized items were delivered by SPO3 Caluag.
[34]
Seventh. The prosecution failed to adduce documentary proof of
compliance with Section 21 of RA 9165. At any rate, PCI Ortiz did not
testify during the trial, breaking the link between the investigator and
the forensic chemist.
[35]
Finally. the trial court did not perform an ocular inspection of
the seized items within 72 hours as required under Section 21 of RA
9165.
[36]
The Office of the Solicitor General (OSG), on the other hand, defended the verdict of conviction.
[37] It maintained that all the elements of illegal sale and possession of dangerous drugs were present.
[38] It also refuted appellant's arguments, thus:
First. The arresting officers had every right to believe the four
(4) bricks recovered from appellant contained cocaine, considering that
they earlier performed a test buy which yielded positive results. More,
there was already a meeting between the minds of appellant and SPO2
Taldo concerning the sale of four 4 kilos of cocaine; the arresting
officers did not have reason to doubt that appellant would not uphold
his end of the bargain. At any rate, an on the spot laboratory
examination of the drug items is ludicrous and unrealistic.
[39]
Second. The call to SPO3 Ngo was the buy bust team's
pre-determined signal for the consummation of the sale. Thus, when SPO2
Taldo dialed SPO3 Ngo's number, the buy bust team had probable cause to
believe that the sale of cocaine had in fact been consummated, and that
appellant committed a crime.
[40]
Third. The prosecution's failure to submit the results of the
ultraviolet test did not weaken the case of the prosecution. For the use
of ultraviolet powder is not even required in buy bust operations.
[41]
Fourth. Whether Perillo actually saw any off-white powdered
substance is immaterial. He only had to witness and identify the items
seized from appellant. It is up to the forensic chemist to determine
whether these items are positive for drugs after performing qualitative
examinations thereon.
[42]
Fifth. The arresting officers sufficiently explained the absence
of a representative from the DOJ during the buy bust operation. Despite
earnest efforts from the arresting officers to secure the presence of
such witness, they failed because there was no duty prosecutor that
night.
[43]
Sixth. PSI Ballesteros explained the supposed double request for
laboratory examination. He testified that it was PCI Ortiz who delivered
the seized items to him while the results were to be released to SPO3
Caluag as the actual requesting party.
[44]
Seventh. The prosecution established that the arresting officers
complied with the chain of custody rule, hence, the integrity and
evidentiary value of thee seized items were duly preserved. Documentary
evidence is not necessary to prove transfers of custody; testimonial
evidence would suffice.
[45]
Finally. The trial court's failure to perform an ocular
inspection did not weaken the case of the prosecution. For the sole
purpose of an ocular inspection is to allow the presentation of
representati ve samples during the trial rather than the entirety of the
items seized, allowing he immediate destruction of the contraband.
Thus, ocular inspection is unnecessary in the present case where the
entire bricks of cocaine were presented during the trial, not just their
representative samples.
[46]
Subsequently, appellant filed his supplemental brief,
[47]
arguing that the buy bust operation could not be considered valid since
the prosecution did not offer the testimony of any of the insulating
witnesses during the trial. He insisted on his innocence, citing the
arresting officers non-compliance with Section 21, RA 9165 and
People v. Lim[48] as bases.
The Ruling of the Court of Appeals
Under Decision
[49] dated April
26, 2019, the Court of Appeals affirmed. For one, appellant was validly
arrested sans judicial warrant as he was caught in
flagrante delicto
selling two (2) bricks of cocaine. The consequent search of his vehicle
which yielded two (2) more bricks of cocaine was therefore legal.
[50]
For another, the prosecution established the elements of illegal sale
and possession of dangerous drugs were duly established through an
unbroken chain of custody over the seized items.
[51]
The Court of Appeals denied reconsideration on October 9, 2019.
[52]
Present Appeal
Appellant now seeks the reversal of the verdict of conviction anew. By
Resolution dated February 3, 2021, the Court directed the parties to
file their supplemental briefs if they so desire. On even date,
appellant filed his supplemental brief
[53]
which essentially reiterates his arguments before the Court of Appeals.
Meanwhile, the OSG manifested that it will no longer be submitting its
supplemental brief.
Ruling
We affirm.
Appellant is barred from questioning the validity of his arrest |
|
Section 5, Rule 113 of the Rules of Criminal Procedure enumerates the instances when a warrantless arrest is lawful,
viz.:
Section 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense; (emphasis added)
x x x x
Here, appellant was arrested in
flagrante delicto on June 15,
2010, following a buy-bust operation. As borne in the records,
poseur-buyer SPO2 Leonardo Taldo paid appellant six (6) P500.00 bills
placed inside a bag of boodle money, all dusted with ultraviolet powder,
in exchange for two (2) bricks of suspected cocaine placed inside a
maroon-brown Otto shoebox. Once the transaction got consummated, SPO2
Taldo performed the buy-bust team's pre-arranged signal by calling the
phone of SPO3 Ngo. Subsequently, the rest of the buy-bust team rushed to
arrest appellant and performed a search on his vehicle, resulting in
the seizure of yet another shoebox containing two (2) more bricks of
suspected cocaine.
[54]
Appellant nevertheless assails the validity of his warrantless arrest, arguing on appeal that he could not have been caught in
flagrante delicto
selling dangerous drugs since the arresting officers had no personal
knowledge on whether the four (4) bricks allegedly seized from him were
actually cocaine. Too, SPO2 Taldo's call to SPO3 Ngo was not sufficient
basis for probable cause that he had just committed a crime.
[55]
We are not persuaded.
Objections against the lawfulness of an arrest which are not raised
through a motion to quash before the accused enters his or her plea are
deemed waived, for the voluntary submission of an accused to the
jurisdiction of the court and his or her active participation during the
trial cures any defect or irregularity that may have attended an
arrest.
[56]
Here, appellant questioned the validity of his arrest only on appeal
before the Court of Appeals. By that time, he was already estopped from
raising any objection against the legality of his warrantless arrest. To
be sure, appellant willingly stipulated during the pre-trial that the
trial court had jurisdiction over his person.
[57] He is therefore barred from claiming otherwise.
All the elements illegal sale and possession of dangerous drugs were present |
|
Appellant is charged with unauthorized sale and possession of dangerous
drugs allegedly committed on June 15, 2010. The applicable law therefore
is RA 9165 before its amendment in 2014. These offenses are defined and
penalized under Sections 5 and 11 of the same law, thus:
SEC. 5. Sale, Trading, Administration, Dispensation,
Delivery, Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. - The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand
pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person, who, unless authorized by law, shall sell,
trade, administer, dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drug, including any and
all species of opium poppy regardless of the quantity and purity
involved, or shall act as a broker in any of such transactions.
x x x x
SEC. 11. Possession of Dangerous Drugs. - The penalty of life
imprisonment to death and a tine ranging from Five hundred thousand
pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person, who, unless authorized by law, shall possess
any dangerous drug in the following quantities, regardless of the degree
or purity thereof:
x x x x
(4) 10 grams or more of cocaine or cocaine hydrochloride;
All the elements of both offenses are present here.
a. |
The elements of illegal sale of dangerous drugs are present |
|
To secure a conviction for illegal sale of dangerous drugs, the
prosecution must establish the following elements: (1) the identity of
the buyer and the seller, the object of the sale and its consideration;
and (2) the delivery of the thing sold and the payment therefor.
[58]
As the Court of Appeals aptly noted, SPO2 Taldo, the poseur-buyer, gave a
clear and accurate account of the transaction that occurred between him
and appellant on June 15, 2010,
viz.:
[59]
Prosecutor Porte: |
Q: |
When you were on board the Mitsubishi Strada, what happened next? |
A: |
He asked me where the money is. |
|
|
Q: |
What was your reaction then? |
A: |
I told him I want to see first the cocaine. |
|
|
Q: |
What was the reaction of alias Alex? |
A: |
He picked-up a brown shoe box with marking Otto, and he handed it to me. |
|
|
Q: |
What did you do with the box? |
A: |
I opened the box. |
|
|
Q: |
After you opened the box, did you see anything inside the box? |
A: |
I saw the 2 bricks of suspected cocaine. |
|
|
Q: |
After you saw the bricks of suspected cocaine, what was your reaction? |
A: |
I gave him the boodle money. |
|
|
Q: |
Was alias Alex able to receive the boodle money? |
A: |
Yes, sir. |
Based on the testimonies of the prosecution witnesses, appellant was the
seller and SPO2 Taldo was the buyer in the illegal sale of dangerous
drugs subject of this case. SPO2 Taldo was supposed to purchase four (4)
kilos of cocaine but only two (2) bricks were delivered to him before
the buy bust team arrested appellant. In exchange for these two (2)
bricks of cocaine, SPO2 Taldo handed appellant a bag containing six (6)
500 bills and 60 bundles of boodle money dusted with ultraviolet powder
as payment. The sale of illegal drugs was therefore consummated.
Appellant argues though that if there was indeed a sale and he truly
received payment from SPO2 Taldo, then he should have tested positive
for ultraviolet powder. The prosecution, however, did not offer in
evidence any proof of such positive result.
[60]
The argument utterly lacks merit.
The arresting officer's failure to test appellant for ultraviolet powder
is not fatal to the prosecution's case. For the law does not require
buy-bust money and boodle money used in anti-drug operations to be
dusted with ultraviolet powder for purposes of proving delivery of
payment. This second element may be established through other means,
such as the testimony of the poseur-buyer himself, as here. To
reiterate, SPO2 Taldo categorically testified that he had delivered
payment to appellant. Both the trial court and the Court of Appeals
found this testimony to be credible. The Court sees no cogent reason to
depart from this uniform factual findings of the courts below.
b. |
The elements of illegal possession of dangerous drugs are present |
|
In a prosecution for illegal possession of dangerous drugs, it must be
shown that (1) the accused was in possession of an item or an object
identified to be a prohibited or regulated drug; (2) such possession is
not authorized by law; and (3) the accused was freely and consciously
aware of being in possession of the drug.
[61]
"Possession" under the contemplation of Section 11, RA 9165 may either be actual or constructive.
People v. Santos,
[62] citing
People v. Lagman,
[63] elucidates:
x x x Possession, under the law, includes not only actual
possession, but also constructive possession. Actual possession exists
when the drug is in the immediate possession or control of the accused.
On the other hand, constructive possession exists when the drug is under
the dominion and control of the accused or when he has the right to
exercise dominion and control over the place where it is found.
Exclusive possession or control is not necessary. The accused cannot
avoid conviction if his right to exercise control and dominion over the
place where the contraband is located, is shared with another.
Here, appellant had possession of the two (2) bricks of cocaine
recovered from behind the driver seat of his vehicle upon his arrest.
Though he did not have immediate physical possession of these items, he
had constructive possession thereof. Only he had dominion of these
items. The two (2) bricks of cocaine were under his control and
disposal.
Appellant cannot deny knowledge of the two (2) additional bricks of
cocaine inside his car. Obviously, he was about to sell them to SPO2
Taldo to complete the latter's order of four (4) kilos of cocaine. But
before he could physically deliver the rest of his merchandise to SPO2
Taldo, the buy bust team moved in and effected his arrest.
All told, all the elements of illegal sale and possession of dangerous drugs are present.
The prosecution sufficiently established all the links in the chain of custody |
|
Finally, appellant asserts that the prosecution failed to establish an
unbroken chain of custody of the seized items. Otherwise stated, even
assuming the elements of illegal sale and possession of dangerous drugs
were duly established, the prosecution nevertheless failed to prove that
the items supposedly seized from him were the same ones offered in
evidence during the trial.
We resolve.
In illegal drugs cases, the drug itself constitutes the
corpus delicti
of the offense. The prosecution, therefore, is tasked to establish that
the substance illegally possessed by the accused is the same substance
presented in court.
[64]
To ensure the integrity of the seized drug item, the prosecution must account for each link in its chain of custody:
[65] first, the seizure and marking of the illegal drug recovered from the accused by the apprehending officer;
second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer;
third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and
fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the court.
[66]
Section 21 of RA 9165 further prescribes the standard in preserving the
corpus delicti in illegal drug cases,
viz:
SECTION 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. - 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 so
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 and quantitative examination;
(3) A certification of the forensic laboratory examination results,
which shall be done under oath by the forensic laboratory examiner,
shall be issued within twenty-four (24) hours after the receipt of the
subject item/s: Provided, That when the volume of the dangerous
drugs, plant sources 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 issued stating therein the quantities of dangerous drugs
still to be examined by the forensic laboratory: Provided, however,
That a final certification shall be issued on the completed forensic
laboratory examination 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 precursors 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 whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the DOJ, civil society groups 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;
x x x x
More, the Implementing Rules and Regulations of RA 9165 ordains:
Section 21. (a) The apprehending officer/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: Provided, that the physical
inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that
non-compliance with these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render
void and invalid such seizures of and custody over said items. (emphases
added)
The Court finds that the prosecution sufficiently established compliance with the afore-cited rules.
a. First Link
The first link of the chain of custody is the seizure and marking of the
illegal drug recovered from the accused, as well as compliance with the
physical inventory and photograph requirements.
[67]
Marking is the starting point in the custodial link. It 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, thus, preventing switching,
planting or contamination of evidence. Marking though should be done in
the presence of the apprehended violator immediately upon confiscation
to truly ensure that they are the same items which enter the chain of
custody.
[68]
After marking the seized items, the apprehending team shall conduct a
physical inventory and photograph the seized items in the presence of
the accused or his representative or counsel, a representative from the
media and the DOJ, and any elected public official.
[69] The purpose of the law in having these witnesses is to prevent or insulate against and deter possible planting of evidence.
[70] Failure to comply with this three (3) witness rule, however, does not
ipso facto
invalidate or render void the seizure and custody over the items as
long as the prosecution is able to show that (a) there is justifiable
ground for noncompliance; and (b) the integrity and evidentiary value of
the seized items are properly preserved.
[71]
Here, SPO2 Taldo immediately marked the two (2) bricks of cocaine in the
Otto shoebox he received from appellant with LPP 06152315 2010 and LPP1
06152315 2010 together with his signature at the place of operation.
[72]
Meanwhile, PO3 Perida recovered a yellow Mario D'Boro box containing
two (2) more bricks of suspected cocaine from behind the driver seat
which he, too, immediately marked LPP2 06152315 2010 and LPP3 06152315
2010 with his signature.
[73]
The marking was done in the presence of Barangay Kagawad Santos and two
(2) representatives from the media, Tapalla from ABC 5 and Perillo from
GMA 7.
[74] An inventory of the
seized items was then prepared in the presence of appellant and the
witnesses. Photographs were taken during the marking and inventory.
[75]
Dissatisfied, appellant bewails the absence of a representative from the
DOJ during the operation. He claims that the absence of a DOJ
representative during inventory is ground for acquittal. He, too, relies
on the testimony of Perillo wherein the latter denied seeing white
powdered substance, albeit he saw the bricks wrapped in masking tape
which were allegedly seized from appellant, rendering the inventory
questionable.
[76]
We are not persuaded.
For one, the arresting officers offered adequate explanation for
the absence of a DOJ representative during the inventory. As the Court
of Appeals keenly observed, the arresting officers exerted earnest
effort to secure a witness from the DOJ but to no avail:
x x x While there was no DOJ representative to witness the
marking and inventory, SPO1 Taldo, PO3 Perida and SPO3 Ngo explained
that, although they exerted efforts to secure the presence of a
representative from the DOJ, there was no duty prosecutor at the time
when they conducted the buy-bust operation. The Court notes that it was
close to midnight when the operation took place.
Verily, there was simply no prosecutor from the DOJ who was available to
witness the inventory at that very late hour in the evening. We also
consider the immediacy of performing the marking and inventory of seized
items which ought riot be delayed. In
People v. Maralit,
[77]
the Court took these twin circumstances into consideration in affirming
the verdict of conviction against therein appellant despite the absence
of a DOJ representative during the marking and inventory,
viz.:
Here, it is evident from the records that the marking and inventory of the two (2) bricks of marijuana were immediately conducted at the place of the arrest,
soon after these items were taken from Maralit. Between Maralit's
arrest and the marking of the items, only ten (10) minutes passed, which
the prosecution adequately justified as the time spent by the
apprehending team waiting for the arrival of the witnesses to the
marking and inventory.
Furthermore, during the marking and inventory of the seized items, there
were two (2) barangay officials and one (1) media representative
present. While there was no DOJ representative to witness the marking
and inventory, IO1 Esmin and PO2 Caalim explained that they were no
longer able to contact a representative from the DOJ because by the time
they were finished with the entrapment operation, it was beyond office
hours.
The Court does not lose sight of the fact that under various field
conditions, compliance with the requirements under Section 21 of R.A.
No. 9165 may not always be possible. Thus, while the presence of all
these witnesses are ordinarily required, non-compliance is excusable
when the integrity and the evidentiary value of the seized items were
properly preserved. There should also be proper justification for the
arresting officers' failure to comply with the procedure under Section
21 of R.A. No. 9165.
Considering that the police officers explained the absence of the DOJ
representative, coupled with the fact that they endeavored to comply
with the mandatory procedure by securing the presence of elected
officials and a representative from the media, their failure to strictly
observe Section 21 of R.A. No. 9165 is not fatal to the case. The
integrity and evidentiary value of the seized evidence were nonetheless
preserved because there were other witnesses to the marking and
inventory of the seized bricks of marijuana. Two (2) barangay
officials and a representative from the media were present during this
stage, photographs were taken, and an inventory signed by these
witnesses was prepared. Furthermore, while the inventory does not
bear the signature of Maralit, the photographs show that Maralit was
present during the marking and inventory of the seized items. (emphases
added)
Clearly, the justifications offered in
Maralit closely
correspond to the explanations given by the arresting officers here.
Thus, we are compelled to observe the same degree of reasonableness
here.
At any rate, the Court keenly notes that as in
Maralit,
the arresting officers here were likewise able to preserve the integrity
and evidentiary value of the seized items which were marked,
inventoried, and photographed in front of an elected official and two
(2) media representatives. To be clear though, a media representative is
no substitute for a DOJ representative under RA 9165 prior to its
amendment. However, the arresting officers' decision to invite
additional witnesses than required is cogent proof of their good faith,
if not, earnest efforts to comply with the witness requirement under
Section 21, RA 9165, and more important, to ensure transparency and
dispel any kind of suspicion on the legitimacy of the operation.
For another, it was not Perillo's job as insulating witness to
look for white powdery substance which could possibly be dangerous
drugs. For the insulating witnesses do
not guarantee that the
items seized from an accused are indeed dangerous drugs. They only
needed to confirm that the items seized from appellant as appearing in
the inventory, regardless of whether they are dangerous drugs or simply
mundane things, are the same items offered in evidence before the trial
court.
As the Court of Appeals correctly held, therefore, the first link in the chain was duly established.
b. Second Link
The second link pertains to the turnover of the illegal drug seized by
the apprehending officer to the investigating officer. This is a
necessary step in the chain of custody because it will be the
investigating officer who shall conduct the proper investigation and
prepare the necessary documents for the developing criminal case.
[78]
Here, SPO2 Taldo and PO3 Perida turned over the seized items to SPO3
Caluag, the designated investigator for the case. This was established
through the testimonies of the prosecution witnesses as well as the
Turn-Over of Confiscated/Seized Evidence.
[79]
At any rate, appellant did not raise any specific argument against the second link which is, therefore, deemed proved.
c. Third Link
The third link is the turnover of the seized drugs by the investigating officer to the forensic chemist for examination.
Records show that on June 16, 2010, at 1:30 in the morning, SPO3 Caluag
turned over the seized items to PCI Ortiz of the PNP Crime Laboratory
who was present at the operation. Thereafter, PSI Ballesteros received
the seized items from PCI Ortiz for laboratory examination at 2:55 that
same morning. Per Chemistry Report No. D-43-10, all four (4) bricks
tested positive for cocaine.
Appellant claims, however, that the third link was not sufficiently
established considering that the prosecution did not present PCI Ortiz
as witness. Too, PSI Ballesteros received two (2) requests for
laboratory examination, one each from SPO3 Caluag and PCI Ortiz.
The arguments fail to convince.
The prosecution's failure to present the testimony of PCI Ortiz did not
diminish the integrity and evidentiary value of the seized items. To be
sure, the Court is not inflexible in its treatment of drug cases. As
held in
Malillin v. People:
[80]
While testimony about a perfect chain is not always the
standard because it is almost always impossible to obtain, an unbroken
chain of custody becomes indispensable and essential when the item of
real evidence is not distinctive and is not readily identifiable, or
when its condition at the time of testing or trial is critical, or when a
witness has failed to observe its uniqueness. The same standard
likewise obtains in case the evidence is susceptible to alteration,
tampering, contamination and even substitution and exchange. In other
words, the exhibit's level of susceptibility to fungibility, alteration
or tampering without regard to whether the same is advertent or
otherwise not dictates the level of strictness in the application of the
chain of custody rule.
Indeed, the likelihood of tampering, loss or mistake with respect to
an exhibit is greatest when the exhibit is small and is one that has
physical characteristics fungible in nature and similar in form to
substances familiar to people in their daily lives. Graham vs. State
positively acknowledged this danger. In that case where a substance
later analyzed as heroin was handled by two police officers prior to
examination who however did not testify in court on the condition and
whereabouts of the exhibit at the time it was in their possession was
excluded from the prosecution evidence, the court pointing out that the
white powder seized could have been indeed heroin or it could have been
sugar or baking powder. It ruled that unless the state can show by
records or testimony, the continuous whereabouts of the exhibit at least
between the time it came into the possession of police officers until
it was tested in the laboratory to determine its composition, testimony
of the state as to the laboratory's findings is inadmissible. (emphases
added)
Indeed, strict adherence to Section 21 is required where the quantity of
illegal drugs seized is miniscule, since it is highly susceptible to
planting, tampering or alteration of evidence.
[81] But this is not the case here where appellant was caught with four (4) bricks of cocaine weighing about one (1) kilo each.
What makes the seized items here even more peculiar was that they were
wrapped in masking tape and distinctly marked during the operation with
LPP 06152315 2010, LPP1 06152315 2010, LPP2 06152315 2010 and LPP3
06152315 2010 together with the signature of the arresting officers.
Photos of these four (4) bricks were also taken, allowing confirmation
on whether the same bricks of cocaine seized from appellant landed on
the hands of PSI Ballesteros. This would not have been possible had the
case involved miniscule amounts.
In any event, the presumption of regularity in the performance of
official functions operates in favor of the arresting officers.
[82]
Unless there is clear and convincing evidence that the police officers
were inspired by any improper motive or did not properly perform their
duty, their testimonies on the operation deserve full faith and credit.
Thus, unless the presumption is rebutted, it becomes conclusive.
[83]
Here, the arresting officers were not impelled by any improper motive to
perform the buy-bust and arrest appellant other than their genuine
desire to properly perform their functions. In fact, they did not
hastily act on the report from their confidential informant and
conducted a test buy to verify the information they received. When it
yielded positive results, they immediately hatched the buy-bust
operation. There were no serious lapses during its conduct. At most, no
DOJ representative was present during the inventory but even this was
justified. The presumption of regularity, should therefore be upheld to
fill the supposed gap in the chain of custody.
As for the double request for laboratory examination, this too was
adequately explained. The request from PCI Ortiz was due to the fact
that he was the one who personally delivered the seized items to PSI
Ballesteros. But PCI Ortiz also worked at the PNP Crime Laboratory and
was actually PSI Ballesteros' superior. Though present at the scene, PCI
Ortiz was not part of the buy bust team, the actual party who would be
interested in the results of the laboratory examination for purposes of
filing a criminal case against appellant. Thus, SPO3 Caluag prepared his
own request for laboratory examination so that their station would
directly receive the results of said examination within 24 hours as
required under Section 21 of RA 9165.
Verily, the third link. was also established.
d. Fourth Link
The final link is the turnover and submission of the seized items by the forensic chemist to the court.
Here, PSI Ballesteros brought the seized items to the trial court during
the pre-trial conference and hearing-on appellant's petition for bail.
Said items were marked as exhibits in open court in the presence of
appellant himself and counsel.
[84] PSI Ballesteros further testified during the trial:
[85]
Prosecutor Manguiat-Ngaosi: |
|
|
Q: |
I have here two (2) shoeboxes one yellow and
one maroon. Can you please go over these including the contents of these
boxes and tell us what are the relation of these, if any, to the
exhibits presented to you that you earlier mentioned? |
A: |
These are the specimens submitted to me for examination, ma'am. |
|
|
Q: |
Why do you know that these are the specimens submitted for examination? |
A: |
I placed my own markings, ma'am. |
|
|
Q: |
What are your markings placed on these exhibits, Mr. Witness? |
A: |
For Box no. 1, I placed D-43-10E MAB, my
initials, the date, June 16, 2010, and its contents D-43-10 A-2 and
D-43-10 A-1, for the second box, I placed D-43-10 B, my initials, the
date, June 16, 2010, and for its contents I placed D-43-10 B-2, D-43-10
B-1. |
In fine, there is no doubt that the items seized from appellant and
tested by PSI Ballesteros were the same items delivered to court for
purposes of prosecuting appellant's case.
Appellant, however, faults the trial court for failure to perform an
ocular inspection within 72 hours from the filing of the Informations as
required by Section 21(4) of RA 9165.
But the same does not, in any way, affect the integrity and evidentiary
value of the seized items. To recall, Section 21(4) of RA 9165 states:
SECTION 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. - 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 so
confiscated, seized and/or surrendered, for proper disposition in the
following manner:
x x x x
(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 precursors 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 whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the DOJ, civil society groups 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; (emphases added)
Clearly, the purpose of the provision is to allow the PDEA to destroy
the seized drug items even before they are presented in court to reduce
the risk of these items ending up back in the streets. Meanwhile, ocular
inspection allows the trial court to personally see the seized items
before they are destroyed by the PDEA. It ensures that the
representative sample brought to court as proof of the
corpus delicti actually came from the items seized from the accused.
Otherwise stated, Section 21(4) of RA 9165 bears upon the integrity and
evidentiary value of representative samples only. Non-compliance with
the provision would not affect the integrity and evidentiary value of
the entirety of the seized items when said items themselves are
presented in court, not just their representative samples, as here.
Here, the prosecution offered in evidence not just mere representative
samples of the four (4) bricks of cocaine seized from appellant but the
four (4) bricks of cocaine themselves duly marked as Exhibits HH, II, KK
and LL.
[86] Surely, this is
over-compliance with the chain of custody rule which allows mere
representative samples to be offered in evidence during trial. Since the
seized drug items were not destroyed, the integrity and evidentiary
value of the seized items were further preserved.
The Court recognizes though that the PDEA's failure to destroy the (4)
bricks of cocaine beforehand nevertheless constituted a breach of
Section 21(4), RA 9165. To repeat, however, this would not affect the
integrity and evidentiary value of the entirety of the seized items but
could, at most, be ground for possible disciplinary action.
All told, the prosecution has successfully established the chain of
custody of the seized items. Consequently, the integrity and evidentiary
value of these seized items are deemed preserved. The
corpus delicti
of the crimes charged against appellant were therefore established. As
such, there is no reason to depart from the assailed verdicts of
conviction.
ACCORDINGLY, the appeal is
DISMISSED. The Decision dated April 26, 2019 and Resolution dated October 9, 2019 of the Court of Appeals in CA-G.R. CR-HC No. 08244 are
AFFIRMED.
Appellant
SPO1 ALEXANDER ESTABILLO y PALARA is found
GUILTY of violation of Sections 5 and 11 of Republic Act No. 9165 and sentenced to
LIFE IMPRISONMENT and a
FINE of P10,000,000.00 for each offense.
SO ORDERED.
Perlas-Bernabe, (Chairperson), M. Lopez, Rosario, and
J. Lopez,
* JJ., concur.
* Designated as additional member per S.O. No. 2822 dated April 7, 2021.
[1] Penned by Associate
Justice Maria Filomena D. Singh and concurred in by Associate Justices
Japar B. Dimaampao and Manuel M. Barrios;
rollo, p. 3-31.
[2] Penned by Associate
Justice Maria Filomena D. Singh and concurred in by Associate Justices
Japar B. Dimaampao and Manuel M. Barrios; CA
rollo, p. 321.
[3] AN ACT INSTITUTING THE
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO.
6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED,
PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES.
[4] Rollo, p. 4.
[5] Id. at 5.
[6] Also appears as SPO1 Taldo in the records.
[7] Also appears as SPO1 Caluag in the records.
[8] Rollo, p. 5.
[9] Id. at 5-6.
[10] Id. at 6.
[11] Id.
[12] Id. at 7.
[13] Id.
[14] Id. at 8.
[15] Id.
[16] CA
rollo, p. 23.
[17] Id.
[18] Rollo, p. 9.
[19] Id. at 9-10.
[20] Also appears as Major Ortiz in the records.
[21] Rollo, p. 10.
[22] Id.
[23] Id. at 11.
[24] Id. at 11-12.
[25] CA
rollo, p. 126.
[26] Id. at 161-170.
[27] Id. at 172.
[28] Id. at 35.
[29] Id. at 43-46.
[30] Id. at 51-53.
[31] Id. at 50-51.
[32] Id. at 46-50.
[33] Id. at 58-59.
[34] Id. at 54-56.
[35] Id. at 55-58.
[36] Id. at 50.
[37] Id. at 194.
[38] Id. at 203-208.
[39] Id. at 208-209.
[40] Id. at 210.
[41] Id. at 215.
[42] Id. at 209.
[43] Id. at 216.
[44] Id. at 214.
[45] Id.
[46] Id. at 216.
[47] Id. at 235.
[48] G.R. No. 231989, September 4, 2018.
[49] Penned by Associate
Justice Maria Filomena D. Singh and concurred in by Associate Justices
Japar B. Dimaampao and Manuel M. Barrios;
rollo, p. 3.
[50] Id. at 15-19.
[51] Id. at 19-29.
[52] Penned by Associate
Justice Maria Filomena D. Singh and concurred in by Associate Justices
Japar B. Dimaampao and Manuel M. Barrios; CA
rollo, p. 321.
[53] Rollo, p. 39.
[54] Id. at 8-9.
[55] CA
rollo, pp. 43-53.
[56] Veridiano v. People, 810 Phil. 642, 654 (2017).
[57] CA
rollo, p. 64.
[58] People v. Hilario, 823 Phil. 580, 594 (2018).
[59] TSN, SPO1 Leonardo Taldo,
April 30 2012, pp. 14-15 as cited in the Decision dated April 26, 2019
of the Court of Appeals in CA-G.R. CR-CH No. 08244; See
rollo, pp. 17-18.
[60] CA
rollo, pp. 50-51.
[61] People v. Hilario, supra note 58.
[62] 823 Phil. 1162, 1176-1177 (2018).
[63] 593 Phil. 617, 625 (2008).
[64] Jocson v. People, G.R. No. 199644, June 19, 2019.
[65] As defined in Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002:
x x x x
b. "Chain of Custody" means the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and
signature of the person who held temporary custody of the seized item,
the date and time when such transfer of custody were made in the course
of safekeeping and use in court as evidence, and the final
disposition[.]
x x x x
[66] People v. Dahil, 750 Phil. 212, 231 (2015).
[67] People v. Omamos, G.R. No. 223036, July 10, 2019.
[68] Id.
[69] Section 21 (l), RA 9165.
[70] People v. Tanes, G.R. No. 240596, April 3, 2019.
[71] Section 21(a), IRR of RA 9165.
[72] CA
rollo, p. 23.
[73] Id.
[74] Rollo, pp. 9-10.
[75] Id.
[76] CA
rollo, pp. 46-59.
[77] 838 Phil. 191; 208-209 (2018).
[78] People v. Hementiza, 807 Phil. 1017, 1026 (2017).
[79] Rollo, p. 25.
[80] 576 Phil. 576, 587-588 (2008).
[81] People v. Sali, G.R. No. 236596 (Resolution), [January 29, 2020].
[82] Section 3(m), Rule 131, Rules of Court.
[83] People v. Cabiles, 810 Phil. 969, 975-976 (2017).
[84] Rollo, p. 28.
[85] TSN, PSI Mark Alain B.
Ballesteros, April 7, 2011, pp. 14-15 as cited in the Decision dated
April 26, 2019 of the Court of Appeals in CA-G.R. CR-HC No. 08244, p.
27; see
id. at 29.
[86] Id. at 28.