Michael Tañamor vs.
People
The Petition is meritorious. The unjustified, let alone admitted departures
from the chain of custody, particularly the undertaking of the inventory
elsewhere than in the place of arrest and the absence of the insulating
witnesses at the time of seizure, lead the Court to no sounder conclusion
than petitioner's acquittal.
In drug cases, the State bears the burden not only of proving the elements
of the crime, but also its body or corpus delicti, which in these cases
pertains to the dangerous drug itself.[32] In cases involving illegal drugs,
buy-bust operation has been declared as a valid and effective procedure for
apprehending drug peddlers and distributors [33] and a legally sanctioned
means of trapping lawbreakers in felonious acts. [34] Nevertheless, precisely
due to the peculiar nature of a buy-bust operation, the law concomitantly
requires strict compliance with procedures laid down by it to ensure that all
the rights of the accused are guaranteed and the credibility of the corpus
delicti safeguarded, in sober recognition of the fact that the character of
anti-narcotics operations and the decided ease with which illegal drugs may
be planted open them to a great possibility of abuse.[35]
A long line of cases decided by the Court has demonstrated that the
exacting procedures for observation during a buy-bust operation more
often rise or fall on either the adherence to or non-compliance with the
chain of custody rule. The chain of custody means the duly recorded
authorized movements and custody of seized drugs or controlled chemicals
from the time of seizure, to receipt in the forensic laboratory, to
safekeeping, to presentation in court. [36] An unbroken chain of custody is
necessary in order to establish before the court that the prohibited drug
confiscated or recovered from the suspect is the very same substance
offered in court as exhibit; and that the identity of said drug is established
with the same unwavering exactitude as that required to make a finding of
guilt.[37] This rule is imperative, under pain of rendering all seized evidence
in the course of the operation incredible.
On this point, Section 21,[38] Article II of RA 9165, as amended by RA 10640,
[39]
provides for the procedure that police operatives are required to observe
in order to assure the integrity of the confiscated drugs. The said provision
requires that: (1) the seized items be inventoried and photographed
immediately after confiscation at the place of seizure or at the nearest
police station or at the nearest office of the apprehending officer/team,
whichever is practicable; (2) the physical inventory and photographing
must be done in the presence of (a) the accused or his/her representative or
counsel, (b) an elected public official, and (c) a representative of the
National Prosecution Service or the media; and (3) the accused or his/her
representative and all of the aforesaid witnesses shall be required to sign
the copies of the inventory and be given a copy thereof.
Further, Section 21(a), Article II of the IRR of RA 9165 further specifies
where the physical inventory and photographing of the seized items should
be done and in the presence of whom, to wit:
SEC. 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:
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
(a
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[.][40]
Given the law, i.e., under Section 21, Article II of RA 9165, as reiterated in
Section 21(a), Article II of the IRR, the decisive requirements that bear
upon the present case are the immediacy of the physical inventory and
photographing of the seized items, and the protective, insulating presence
of the three required witnesses.
This Court finds that the arresting officers in this case failed to comply with
these two requirements during the conduct of the buy-bust operation and
the prosecution neglected to justify, let alone acknowledge these lapses,
ultimately proving fatal to its case.
First, Section 21 and its IRR provide that the physical inventory and
photographing of the seized items must be done: (1) immediately after
seizure or confiscation; (2) in the presence of the following personalities:
(a) the accused or his representative or counsel; (b) representative from the
media or a representative from the National Prosecution Service; and (c)
any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof; and (3) at the place where the search
warrant is served or at the nearest police station or nearest office of the
apprehending officer/team, whichever is practicable, in case of warrantless
seizure.[41]
As to the site of the inventory and photographing, this requirement is
depicted in greater detail in the internal rules and guidelines of the
Philippine National Police (PNP). Under the 1999 PNP Drug Enforcement
Manual,[42] the strict procedure in the photographing and inventory of the
seized items has been specified, to wit:
Anti-Drug Operational Procedures
Chapter V. Specific Rules
xxxx
B. Conduct of Operation: (As far as practicable, all operations must be
officer led)
Buy-Bust Operation - in the conduct of buy-bust operation, the following
1.
are the procedures to be observed:
xxxx
Take actual inventory of the seized evidence by means of weighing
k.
and/or physical counting, as the case may be;
Prepare a detailed receipt of the confiscated evidence for issuance to
l.
the possessor (suspect) thereof;
m.The seizing officer (normally the poseur-buyer) and the evidence
custodian must mark the evidence with their initials and also indicate
the date, time and place the evidence was confiscated/seized;
Take photographs of the evidence while in the process of taking the
inventory, especially during weighing, and if possible under existing
n.
conditions, the registered weight of the evidence on the scale must be
focused by the camera; and
Only the evidence custodian shall secure and preserve the evidence in
o. an evidence bag or in appropriate container and thereafter deliver the
same to the PNP CLG for laboratory examination.
In addition, in the Revised PNP Manual on Anti-Illegal Drugs Operations
and Investigation (AIDSOTF-Manual), the handling, custody and
disposition of the seized illegal drugs are also prescribed:
Section 2-6 Handling, Custody and Disposition of Drug and Non-
Drug Evidence
2.33. During handling, custody and disposition of evidence, provisions of
Section 21, RA 9165 and its IRR as amended by RA 10640 shall be strictly
observed.
2.34. Photographs of pieces of evidence must be taken
immediately upon discovery of such, without moving or altering
its original position, including the process of recording the
inventory and the weighing of illegal drugs in the presence of
required witnesses, as stipulated in Section 21, Article II, RA
9165, as amended by RA 10640.
xxxx
a. Drug Evidence
Upon seizure or confiscation of illegal drugs or CPECs, laboratory
equipment, apparatus and paraphernalia, the operating Unit's Seizing
(1)
Officer/Inventory Officer must conduct the physical inventory, markings
and photograph the same in the place of operation in the presence of:
(a) The suspect/s or the person/s from whom such items were
confiscated and/or seized or his/her representative or counsel;
(b) With an elected Public Official; and
(c) Any representatives from the Department of Justice or Media who
shall affix their signatures and who shall be given copies of the
inventory.
(2 For seized or recovered drugs covered by Search Warrants, the inventory
) must be conducted in the place where the Search Warrant was served.
For warrantless seizures like buy-bust operations, inventory and taking
(3)of photographs should be done at the nearest Police Station or Office of
the apprehending Officer or Team.[43]
The seeming contradiction of the third paragraph of 2.34, i.e., that
inventory and photographing after warrantless seizures are to be done at
the nearest police station, with the general rule on "on-site" inventory and
photographing, must be reconciled in that requirement of "on-site"
inventory and photographing under Section 21 of RA 9165 and Section
21(a) of its IRR, must be observed unless for reasons of practicality or
exigency the nearest police station or the office of the apprehending team is
the better option.
Third paragraph of 2.34 must be construed bearing in mind the main
subhead of 2.34 which requires that the evidence must be photographed
and inventoried without being moved or altered from its original position.
The level of specificity with which the AIDSOTF-Manual depicts how the
inventory and photographing should be undertaken, i.e., the inventory and
photographs of the seized items to be made and taken where they are found
is indicative of the legislative intent to ensure that as a general rule,
physical inventory and photographing are done at the site of confiscation.
Such a legally contemplated and intended requirement would be negated if,
in the case of warrantless seizures, the exceptional allowance of inventory
and photographing at the police station be made the general rule instead of
the exception.
Thus, with the seemingly contradictory clause rightly reconciled, these PNP
internal rules illustrate that the inventory and photographing of seized
items are done at the very site of seizure, and only in the narrow instances
where such is rendered impracticable, and with a satisfactory justification
therefor, may the inventory and photographing be undertaken at the
nearest police station or the office of the apprehending team.
Moreover, in the event of the prosecution's acknowledgment of the police
officers' failure to comply with the general rule, the liberal application of
the alternative place of inventory and photographing may only be triggered
upon offer of sufficient justification. In other words, mere invocation of an
inconvenience that rendered the inventory impracticable at the site of
seizure does not translate to compliance with Section 21 and its IRR,
especially if such invocation is not sufficiently explained in the records of
the case and supported by credible evidence.
This Court has also already drawn the nuances in what "immediately"
entails in the operative description "immediately after seizure and
confiscation." In People v. Adobar,[44] the Court held in no uncertain terms:
The phrase "immediately after seizure and confiscation" means
that the physical inventory and photographing of the drugs must
be at the place of apprehension and/or seizure. If this is not
practicable, it may be done as soon as the apprehending team reaches the
nearest police station or nearest office.[45]
Secondly, the prosecution's case must also fail on the ground that the
required insulating witnesses were not present during the confiscation, but
were merely "called in" at the station, both belatedly and after the process
they were supposed to insulate.
Undoubtedly, the requirement of the presence of the mandatory two
insulating witnesses in this case is inseparable from the requirement of
physical inventory and photographing at the place of seizure. Stated
differently, since the physical inventory and photographing of the seized
items must, as a general rule, be done at the place of seizure, it follows that
the two insulating witnesses whose presence are required during the
inventory and photographing must also be in or within the area of the site
of seizure.
Considering the notoriety of buy-bust operations as possible tools for
extortion,[46] and the seeming habit of "calling in" witnesses, [47] the Court
has already taken steps to untangle confusions on this point. In People v.
Castillo,[48] the Court categorically clarified:
"The requirement of conducting inventory and taking of photographs
immediately after seizure and confiscation necessarily means that
the required witnesses must also be present during the seizure
and confiscation." The presence of third-party witnesses is not an empty
formality in the conduct of buy-bust operations. It is not a mere
rubberstamp to validate the actions taken and self-serving assurances
proffered by law enforcement officers. Far from a passive gesture, the
attendance of third-party witnesses ensures the identity, origin, and
integrity of the items seized.[49]
It bears emphasis that the presence of the required witnesses at the time of
the apprehension and inventory is mandatory and serves a crucial purpose.
In People v. Tomawis,[50] the Court explained the rationale behind the
requirement of the insulating witnesses:
The presence of the witnesses from the DOJ, media, and from public
elective office is necessary to protect against the possibility of planting,
contamination, or loss of the seized drug. Using the language of the Court
in People v. Mendoza, without the insulating presence of the
representative from the media or the DOJ and any elected public official
during the seizure and marking of the drugs, the evils of switching,
"planting" or contamination of the evidence that had tainted the buy-busts
conducted under the regime of RA 6425 (Dangerous Drugs Act of 1972)
again reared their ugly heads as to negate the integrity and credibility of the
seizure and confiscation of the subject sachet that was evidence of
the corpus delicti, and thus adversely affected the trustworthiness of the
incrimination of the accused.
The presence of the three witnesses must be secured not only during the
inventory but more importantly at the time of the warrantless arrest.
It is at this point in which the presence of the three witnesses is most
needed, as it is their presence at the time of seizure and confiscation that
would belie any doubt as to the source, identity, and integrity of the seized
drug. If the buy-bust operation is legitimately conducted, the presence of
the insulating witnesses would also controvert the usual defense of frame-
up as the witnesses would be able to testify that the buy-bust operation and
inventory of the seized drugs were done in their presence in accordance
with Section 21 of RA 9165.
The practice of police operatives of not bringing to the intended place of
arrest the three witnesses, when they could easily do so — and "calling them
in" to the place of inventory to witness the inventory and photographing of
the drugs only after the buy-bust operation has already been finished —
does not achieve the purpose of the law in having these witnesses prevent
or insulate against the planting of drugs.
To restate, the presence of the three witnesses at the time of seizure and
confiscation of the drugs must be secured and complied with at the time of
the warrantless arrest; such that they are required to be at or near the
intended place of the arrest so that they can be ready to witness the
inventory and photographing of the seized and confiscated drugs
"immediately after seizure and confiscation."[51]
The presence of the representative from the media or the DOJ and any
elected public official during the seizure and marking of the sachets
of shabu protects the seizure and arrest from possibilities of switching,
"planting" or contamination of the evidence, which compromise the
integrity of the confiscated items. Failure to comply with this jeopardizes
the trustworthiness of corpus delicti, breaks the chain of custody and, by
result, puts the guilt of the accused in doubt.
This requirement on the presence of the insulating witnesses at the time of
seizure can also be easily complied with by the buy-bust team considering
that the buy-bust operation is, by its nature, a planned activity. In People v.
Umipang,[52] the Court called out the police officers' failure to exert earnest
efforts to obtain the insulating witnesses' presence, to wit:
Indeed, the absence of these representatives during the physical inventory
and the marking of the seized items does not per se render the confiscated
items inadmissible in evidence. However, we take note that, in this case, the
SAID-SOTF did not even attempt to contact the barangay chairperson or
any member of the barangay council. There is no indication that they
contacted other elected public officials. Neither do the records show
whether the police officers tried to get in touch with any DOJ
representative. Nor does the SAID-SOTF adduce any justifiable reason for
failing to do so — especially considering that it had sufficient time from the
moment it received information about the activities of the accused until the
time of his arrest.
Thus, we find that there was no genuine and sufficient effort on the part of
the apprehending police officers to look for the said representatives
pursuant to Section 21(1) of R.A. 9165. A sheer statement that
representatives were unavailable — without so much as an explanation on
whether serious attempts were employed to look for other representatives,
given the circumstances — is to be regarded as a flimsy excuse. We stress
that it is the prosecution who has the positive duty to establish that earnest
efforts were employed in contacting the representatives enumerated under
Section 21(1) of R.A. 9165, or that there was a justifiable ground for failing
to do so.[53]
Here, the officers could have complied with the requirements of the law had
they intended to, as they had days to secure the attendance of the required
witnesses. Particularly, they even had the time to conduct both
surveillances and a test-buy prior to the actual buy-bust. The fact that the
apprehending team had days to plan and do surveillances renders the
absence of the insulating witnesses at the place of operation inexcusable.
That the prosecution failed to even acknowledge this lapse let alone justify
it leaves excusing it unlikely.
Further, the prosecution may not hide behind the permissive tone of the
saving clause of Section 21 and its IRR. As the Court explained in People v.
Reyes:[54]
Under the last paragraph of Section 21(a), Article II of the IRR of R.A. No.
9165, a saving mechanism has been provided to ensure that not every case
of non-compliance with the procedures for the preservation of the chain of
custody will irretrievably prejudice the Prosecution's case against the
accused. To warrant the application of this saving mechanism, however, the
Prosecution must recognize the lapse or lapses, and justify or explain them.
Such justification or explanation would be the basis for applying the saving
mechanism. Yet, the Prosecution did not concede such lapses, and did not
even tender any token justification or explanation for them. The failure to
justify or explain underscored the doubt and suspicion about the integrity
of the evidence of the corpus delicti. With the chain of custody having been
compromised, the accused deserves acquittal. x x x[55]
The seizure of the confiscated items, including the three sachets
of shabu weighing 0.61 gram is therefore invalid and void. The prosecution
has no more evidence on which to ground petitioner's conviction, and
petitioner must be acquitted.
A final point, under the prevailing circumstances, the vigor of the campaign
against illegal drugs is perhaps rivaled only by the number of allegations of
illegal seizures and baseless arrests, with the situation reduced to a zero-
sum game. At this point, perhaps the Court may well begin to take due
notice of the fact that the idea of "substantial compliance" in drug
enforcement may be a spectrum of degrees of conformities that have, in far
too many instances, negated the general rule of compliance, so that in the
end, for purposes of protecting the rights of the accused and the
trustworthiness of the prosecution, no degree is "compliant enough" until it
is only but full adherence to the letter and spirit of the law.
