FIRST DIVISION
[G.R. No. 241275. February 15, 2022.]
GERRY DAMAYO y DELIMA @ BISAYA, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedFebruary 15, 2022which reads as follows:
"G.R. No. 241275 (Gerry Damayo y Delima @ Bisaya v. People of the Philippines). — This is a Petition for Review on Certiorari1 filed under Rule 45 of the Rules of Court, assailing the Decision 2 dated March 27, 2018 and Resolution 3 dated July 30, 2018 of the Court of Appeals (CA) in CA-G.R. CR. No. 39880, which affirmed the Decision 4 dated April 18, 2017 of the Regional Trial Court of Manila (RTC), Branch 28, in Criminal Case No. 16-326066 that found Gerry Damayo y Delima @ Bisaya (petitioner) guilty beyond reasonable doubt of Violation of Section 11 (3), Article II, Republic Act (R.A.) No. 9165, otherwise known as the Dangerous Drugs Act of 2002, as amended.
The Antecedents
On June 15, 2016, at around 5:00 o'clock in the afternoon, PO2 Jefferson Bersonda (PO2 Bersonda) and PO2 Cyrus Majuray (PO2 Majuray) of the Manila Police District-Police Station 2 (MPD-PS2) were patrolling Barangay 255, Zone 23, District 2, Tondo, when they chanced upon two men conversing in an alley. 5 The police officers saw one of them holding a small plastic sachet and passing it on to his companion. However, the men scampered away as soon as they sensed the presence of the police operatives. When the police officers ran after them, they were able to accost Damayo from whom they recovered a small plastic sachet containing white crystalline substance. When frisked, the police officers were able to find three more small plastic sachets in Damayo's possession. Damayo was immediately arrested and apprised of his constitutional rights. The policemen initially planned to bring Damayo to the barangay hall but the latter's relatives tried to interfere, which prompted the police officers to proceed to the police station where they conducted the photographing, marking, and inventory of the drugs seized, in the presence of Danny Garendola (Garendola), a media representative. Thereafter, the seized drugs were sent to Police Chief Inspector Elisa Arturo (PCI Arturo), forensic chemist of the MPD-PS2, for examination. The result of the examination yielded a positive result for shabu. 6 TaDCEc
Accordingly, Damayo was indicted for violation of Section 11 (3), Article II, Republic Act No. 9165 (R.A. No. 9165)7 or Illegal Possession of Dangerous Drugs.
On the part of Damayo, he denied the accusations hurled against him. He claimed that he was inside his house in Quiricada Street when police officers barged in, held his arm, and told him to go with them for verification purposes. Damayo was subsequently brought to the police station where he was forced to admit ownership of the drugs that he only saw for the first time. 8
After due proceedings, the RTC issued its Decision 9 dated April 18, 2017, finding Damayo guilty beyond reasonable doubt of illegal possession of dangerous drugs and sentenced him as follows:
WHEREFORE, with the foregoing, the court finds the accused Gerry Damayo y Delima alias "Bisaya," GUILTY beyond reasonable doubt of the crime charged. He is hereby SENTENCED to suffer the indeterminate penalty of 12 years and 1 day as minimum, to 15 years as maximum penalty. He is also ORDERED to pay a fine of P300,000.00, subject to the prevailing rate of interest per annum from the finality of this decision until its full satisfaction.
SO ORDERED. 10
On appeal, the CA affirmed in toto the RTC's ruling, viz.:
IN LIGHT OF THE FOREGOING, the instant appeal is DENIED. Accordingly, the April 18, 2017 Decision of the Manila Regional Trial Court, Branch 28, in Criminal Case No. 16-326066 for violation of Section 11 (3), Article II, Republic Act No. 9165, is hereby AFFIRMED.
SO ORDERED. 11
The CA upheld the prosecution's version that Damayo was caught in flagrante delicto. It brushed aside his repudiation of PO2 Majuray's declaration that he was seen holding the plastic sachet openly, thus, exposing the contraband for the public to see. While the CA acknowledged that transactions involving drugs are often done secretly and clandestinely, it does not rule out the possibility that drug dealers could be a little reckless especially when there are no people in the vicinity. The CA also gave credence to the presumption of regularity in the police officers' performance of their duties as there was no showing that they were actuated by ill-motive or bad faith in testifying against Damayo.
As to the police officers' non-compliance with the procedural requirements under Section 21 (1), Article II of R.A. No. 9165 as amended, the CA recognized that police officers operate under varied conditions and cannot at all times attend strictly with the procedures in the handling of confiscated evidence.
Damayo filed a Motion for Reconsideration, 12 which was denied by the CA in a Resolution 13 dated July 30, 2018. Hence, Damayo filed this petition for review on certiorari arguing that his arrest was illegal since he was not committing or attempting to commit a crime. He likewise argued that the chain of custody was broken when the police operatives failed to strictly comply with the procedure required by law.
Issue
For this Court's resolution is whether petitioner Damayo is guilty beyond reasonable doubt of illegal possession of dangerous drugs. cDEHIC
Our Ruling
One of the instances for a valid warrantless arrest is a situation where the accused was caught in the act of committing a crime, or was about to commit a crime. If the prosecution fails to prove these circumstances, any evidence seized from the accused cannot be used against him or her for any purpose in the proceeding. 14
This stems from a citizen's right against unreasonable searches and seizures, as guaranteed in Article II, Section 2 of the 1987 Constitution, viz.:
SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Generally, a validly issued warrant must precede every search and seizure in order to be considered reasonable. This Court, however, had recognized instances when searches and seizures are considered reasonable even without a warrant. The case of Niro v. People, 15 citing People v. Aruta, 16 outlined the instances when a warrantless search and seizure are considered valid, thus:
1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 17 of the Rules of Court and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which are:
a. a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;
b. the evidence was inadvertently discovered by the police who had the right to be where they are;
c. the evidence must be immediately apparent, and
d. "plain view" justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and frisk; and
7. Exigent and Emergency Circumstances. 18 ISCDEA
In the case of a warrantless search incidental to a lawful arrest, the arrest can either be made in flagrante delicto where two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer, 19 is be made in a hot pursuit arrest, 20 which requires that (1) a crime has just been committed and (2) while law enforcers need not personally witness the commission of a crime . . . they must have personal knowledge of facts and circumstances indicating that the person sought to be arrested committed it. 21
For petitioner's in flagrante delicto arrest to be valid, he must have executed an overt act, which signified that he just committed, is actually committing, or about to commit a crime. Here, PO2 Majuray testified that while the police operatives were on patrol, petitioner was sighted holding a plastic sachet with white crystalline substance suspected as shabu and was seen openly passing the plastic sachet to his companion. As the police officers closed in, petitioner and his companion attempted to flee but the policemen were able to catch up and apprehend him in flagrante delicto.
Indeed, petitioner's mere act of holding the shabu in the presence and in full view of the police operatives was enough to justify that a crime has been committed and his subsequent flight to evade arrest gave the police officers probable cause to conduct a warrantless arrest on him.
However, despite the validity of his warrantless arrest and the consequent search on him, petitioner still deserves an acquittal.
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. The evidence of the illicit drug in evidence must be established beyond reasonable doubt. 22
The Information alleged that the crime upon which petitioner was charged was committed on June 15, 2016. As such, the governing law is Republic Act No. 10640 (R.A. No. 10640), 23 which effectively amended R.A. No. 9165. In People v. Nocum, 24 We outlined the procedural safeguards to be followed by police operatives as contained in Section 1 of R.A. No. 10640, amending Section 21, Article II of R.A. No. 9165, viz.:
SECTION 1. Section 21 of Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," is hereby amended to read as follows:
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:
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items 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, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance of 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 and custody over said items. EDCTIa
xxx xxx xxx
(3) A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of 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 immediately upon completion of the said examination and certification. (Emphases supplied)
In People v. Galisim25 We reiterated that the prosecution must account for each link in the chain of custody to ensure the integrity of the drugs seized. First, the seizure and marking, if practicable, of the dangerous drug recovered from the accused by the apprehending officer; second, the turnover of the dangerous drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the dangerous drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked dangerous drug seized from the forensic chemist to the court. 26
We shall discuss the first and the fourth links.
The first link pertains to the marking, inventory, and photograph of the drugs seized.
In Nocum, 27 the Court highlighted the chain of custody procedure, which required that the physical inventory and photographing of the seized items be done in the presence of the accused or the person from whom the items were seized, or his representative or counsel, as well as the required insulating witnesses, namely: (a) an elected public official AND a representative from National Prosecution Service, OR the media; 28 (b) The law requires the presence of these witnesses primarily to ensure the establishment of the chain of custody and remove any suspicion of switching, planting, or contamination of evidence. 29
Records bear out that the police operatives failed to ensure that the marking and inventory were observed by the witnesses required by law. In fact, as testified to by PO2 Majuray, the marking and inventory of the item seized were witnessed only by a representative from the media. This was corroborated by the receipt of inventory which showed that it was signed only by Garrendola, a media reporter.
The prevailing rule is that in cases where the presence of the required witnesses was not obtained, the prosecution must establish not only the reasons for their absence, but also earnest efforts have been exerted to secure their presence. 30 Here, the prosecution's failure to secure the attendance of a DOJ representative and any elected public official to witness the marking and inventory of the evidence remained unexplained. Likewise, there was no showing that actual serious attempt to contact these insulating witnesses was undertaken by the prosecution.
Certainly, the presence of the insulating witnesses during the inventory and photographing of the confiscated illegal drugs is vital. In the absence of these witnesses, the possibility of switching, planting, or contamination of the evidence negates the credibility of the seized drug and other confiscated items. Non-compliance with this requirement constituted a huge significant gap in the chain of custody which is fatal to the prosecution's case. 31 ADCIca
For the fourth link, it concerns the submission of the dangerous drug from the forensic chemist to the court. In drug related cases, it is of paramount necessity that the forensic chemist testifies as to the details pertinent to the handling and analysis of the dangerous drug submitted for examination, i.e., when and from whom the dangerous drug was received; what identifying labels or other things accompanied it; the description of the specimen; and the container bearing it. Further, the forensic chemist must also identify the name and method of analysis used in determining the chemical composition of the subject specimen. 32
Records bear out that the prosecution and defense stipulated and dispensed with the testimony of forensic chemist PCI Arturo during the pre-trial. The stipulations, nonetheless, only focused on the expertise and qualifications of PCI Arturo as forensic chemist, the crime laboratory's receipt of the letter-request for laboratory examination, the specimens to be tested, the existence of Chemistry Report No. D-555-16, and the presentation of the Chain of Custody Form. Observably, none of these stipulations even mentioned the condition of the specimens when PCI Arturo received them and how she handled the same at the crime laboratory before it was delivered to the court for identification. 33
In People v. Rivera, 34 We emphasized that the testimony of the forensic chemist may be dispensed with provided that the parties stipulate that the forensic chemist would have testified that he or she took the precautionary steps required in order to preserve the integrity and evidentiary value of the seized item, to wit:
[A]s a rule, the police chemist who examines a seized substance should ordinarily testify that he received the seized article as marked, properly sealed and intact; that he resealed it after examination of the content; and that he placed his own marking on the same to ensure that it could not be tampered pending trial. In case the parties stipulate to dispense with the attendance of the police chemist, they should stipulate that the latter would have testified that he took the precautionary steps mentioned. 35
Absent these required stipulations, the fourth link of the chain of custody could not be reasonably established. 36
Indeed, establishing every link in the chain of custody is crucial to the preservation of the integrity, identity, and evidentiary value of the seized items. Failure to demonstrate compliance with even just one of these links creates reasonable doubt that the items confiscated from the accused are the same items offered in evidence, as in this case. 37
In light of the prosecution's failure to account every link in the chain of custody of the drugs allegedly seized from petitioner, a pronouncement for his acquittal is in order.
WHEREFORE, the petition is GRANTED. The Decision dated March 27, 2018 and the Resolution dated July 30, 2018 of the Court of Appeals in CA-G.R. CR. No. 39880 are hereby REVERSED and SET ASIDE. Accordingly, petitioner Gerry Damayo y Delima @ Bisaya is ACQUITTED of the crime charged on the ground of reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from detention unless he is being held for another cause.
Let a copy of this Resolution be furnished to the Director General of the Bureau of Corrections, Muntinlupa City for immediate implementation. He is DIRECTED to REPORT the action he has taken to this Court within five (5) days from receipt of this Resolution. Copies shall also be furnished to the Police General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information. ACTIHa
Let an entry of judgment be issued immediately.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 12-32.
2. Penned by Associate Justice Franchito N. Diamante with Associate Justices Rodil V. Zalameda (now a member of this Court) and Maria Elisa Sempio-Diy, concurring; id. at 36-45.
3.Id. at 58-59.
4. Penned by Judge Jan Marie A. Bacorro-Villena (now Associate Justice of the Court of Tax Appeals); records, pp. 71-81.
5. CA Rollo, pp. 100-101.
6.Id. at 3.
7.Id. at 2.
8.Id.
9.Supra note 4.
10.Id.
11.Id.
12.Id.
13.Supra note 3.
14.Niro v. People, G.R. No. 226014, January 22, 2020.
15.Id.
16. 351 Phil. 868, 879-880 (1998).
17. Now Rules of Court, Rule 126, Sec. 13.
18.People v. Aruta, 351 Phil. 868, 879-880 (1998).
19.People v. Cogaed, 740 Phil. 212, 238 (2014).
20.Veridiano v. People, 810 Phil. 642, 659 (2017).
21.Id. at 660.
22. See People v. Dela Cruz, G.R. No. 229053, July 17, 2019.
23. AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT AMENDING FOR THE PURPOSE, SECTION 21 OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS "THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002." Amendment to R.A. No. 9165 (Anti-Drug Campaign of the Government, Republic Act No. 10640, July 15, 2014.)
24. G.R. No. 239905, January 20, 2021.
25. G.R. No. 231305, September 11, 2019.
26.Id.
27.Supra note 24.
28. See Section 21 (a) of RA 9165.
29.Supra note 12.
30.Tolentino v. People, G.R. No. 227217, February 12, 2020.
31. See People v. Caray, G.R. No. 245391, September 11, 2019.
32. Board Regulation No. 1, Series of 2002: Guidelines on the Custody and Disposition of Seized Drugs, Controlled Precursors and Essential Chemicals, and Laboratory Equipment.
33. See People v. Manolito Rivera, G.R. No. 252886, March 15, 2021.
34.Id.
35.People v. Pajarin, 654 Phil. 461, 466 (2011).
36.Supra note 34.
37.Id.