Fernando y Quiros v. People

FIRST DIVISION

[G.R. No. 250423. September 29, 2021.]

JOMER FERNANDO y QUIROS, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedSeptember 29, 2021which reads as follows:

"G.R. No. 250423 (Jomer Fernando y Quiros v. People of the Philippines).— This is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, assailing the Decision 2 dated July 19, 2019 and Resolution 3 dated November 8, 2019 of the Court of Appeals (CA), which affirmed the Decision dated August 30, 2017 of the Regional Trial Court (RTC) pronouncing the petitioner guilty beyond reasonable doubt of two (2) counts of illegal possession of dangerous drugs, pursuant to Section 11, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The Antecedents

On January 31, 2012, at around 3:00 p.m., a confidential informant arrived at the Guagua Municipal Police Station and informed SPO3 Romeo Pring (SPO3 Pring), PO1 Angelo Ramos (PO1 Ramos), and PO1 Roque Zapanta (PO1 Zapanta) that herein petitioner, Jomer Fernando y Quiros (Fernando), was selling marijuana in Brgy. San Pablo, Guagua, Pampanga. 4

Based on the said information, Police Superintendent (P/Supt.) Rolly R. Mendoza formed a team from the Municipal Drug Enforcement unit to conduct a buy-bust operation against Fernando. The confidential informant was designated as poseur-buyer, while SPO3 Pring, PO1 Ramos, and PO1 Zapanta were designated as backup. The buy-bust team also agreed that the poseur-buyer would raise his right hand as the pre-arranged signal. In preparation of the buy-bust operation, the police processed the necessary documents that include the Coordination Form, Pre-Operation Report, and Authority to Operate. P/Supt. Mendoza then gave SPO3 Pring a one-hundred-peso bill to be used as buy-bust money. 5

At about 3:45 p.m. of the same date, the team proceeded to the said barangay. Upon their arrival in the target area, the poseur-buyer alighted from the vehicle and approached Fernando, who was then standing in front of his house, while the rest of the team positioned themselves more or less eight (8) to ten (10) meters away. 6

After a brief interaction between the confidential informant and Fernando, the former handed the marked P100.00 to the latter, who, in exchange, handed him one small plastic sachet containing marijuana with fruiting tops. After the consummation of the sale, the confidential informant raised his right hand which alerted the back-up members of the team to move and cause the arrest of the petitioner. PO1 Zapanta arrested the petitioner and informed him of his constitutional rights. SPO3 Pring searched Fernando and recovered the following: one (1) small piece of folder paper containing marijuana; one (1) small glass tube containing marijuana seeds; and the marked P100.00 buy-bust money. 7

The petitioner was then brought to the police station where the recovered items were marked, inventoried, and delivered to the PNP Regional Crime Laboratory Office in Camp Olivas, City of San Fernando, Pampanga. 8

The items were received by Police Chief Inspector Angel Timario, the forensic chemist, who examined the items which gave positive results to the test for marijuana. 9

The petitioner denied the charges against him. He explained that on January 31, 2012, at about 12:00 noon, he was with his two (2) cousins whom he was supposed to bring to school when he was arrested by police officers and was brought around Guagua, Pampanga to point to other drug personalities. At about 3:00 p.m., he was taken to San Fernando, Pampanga, where he was left at the Police Provincial Office and was being asked for Fifty Thousand Pesos (P50,000) in exchange for his freedom. 10

The petitioner was charged with the following Information for illegal sale and illegal possession of dangerous drugs, pursuant to Sections 5 and 11 of Article II of R.A. No. 9165, as amended: 11

Criminal Case No. G-12-8972

That on or about 31st of January, 2012, in the municipality of Guagua, province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being a person authorized to sell any dangerous drug, did then and there willfully, unlawfully, knowingly, sell one (1) heat-sealed transparent plastic sachet containing dried marijuana fruiting tops, weighing an amount of ONE GRAM & SIXTY TWO THOUSAND (1.062) of a gram, a dangerous drug.

Contrary to law. 12

Criminal Case No. G-12-8973

That on or about 31st of January, 2012, in the municipality of Guagua, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused not being a person authorized by law to possess, did then and there willfully, unlawfully, have in his possession and under his control one (1) heat-sealed transparent plastic sachet containing marijuana fruiting tops, weighing an amount of ONE GRAM & FOUR HUNDRED EIGHTY TWO THOUSAND (1.482) of a gram, a dangerous drug.

CONTRARY TO LAW. 13

On February 29, 2012, the petitioner, with the assistance of counsel, was arraigned. He pleaded "not guilty" on both violations charged. Thereafter, pre-trial and trial on the merits ensued. 14

The RTC pronounced Fernando guilty beyond reasonable doubt of two (2) counts of illegal possession of dangerous drugs, pursuant to Section 11, Article II, R.A. No. 9165, as amended. 15

With respect to the charge of illegal sale of dangerous drugs in Criminal Case No. G-12-8972, the RTC found that the illegal sale transaction was not sufficiently proved because of the failure of the prosecution to present the testimony of the poseur-buyer. Nevertheless, considering that the police operatives confirmed the handling of the marijuana from the petitioner to the poseur-buyer, the RTC convicted the petitioner of illegal possession, pursuant to the variance doctrine in Rule 120 of the Rules of Court, which provides:

Section 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

While the petitioner was charged under Criminal Case No. G-12-8972 with illegal sale, the prosecution was only able to prove illegal possession. The RTC held that illegal possession is included in the offense of illegal sale of dangerous drugs; hence, the petitioner is convicted of the offense proved (i.e., illegal possession) which is included in the offense charged (i.e., illegal sale).

With respect to the charge of illegal possession of dangerous drugs in Criminal Case No. G-12-8973, the RTC found that the valid warrantless arrest effected upon petitioner, and the ensuing search incident to that arrest, yielded additional marijuana in the possession of the petitioner. Thus, the RTC found the petitioner also guilty of another count of illegal possession of dangerous drugs.

The decretal portion of the RTC's Decision dated August 30, 2017 reads:

WHEREFORE, this court hereby finds accused Jomer Q. Fernando guilty beyond reasonable doubt —

(a) In Criminal Case No. G-12-8972, for illegal possession of one (1) sachet of marijuana weighing 1.062 grams, in violation of Section 11, Article II of R.A. No. 9165; and sentences accused to suffer the penalty of imprisonment of twelve (12) years and one (1) day to fourteen (14) years and a fine of three (3) hundred thousand pesos (P300,000.00), without subsidiary imprisonment in cases of insolvency; and

(b) In Criminal Case No. G-12-8973, for illegal possession of one (1) sachet of marijuana weighing 1.482 grams, in violation of Section 11, Article II of R.A. No. 9165; and sentences accused to suffer the penalty of imprisonment of twelve (12) years and one (1) day to fourteen (14) years and a fine of three (3) hundred thousand pesos (P300,000.00), without subsidiary imprisonment in cases of insolvency.

The marijuana involved in these cases are ordered transmitted to the PDEA thru the DDB for proper care and disposition as required by R.A. No. 9165.

SO ORDERED. 16

The petitioner appealed the Decision of the RTC to the CA, stating that: (i) the prosecution failed to present the poseur-buyer, which is fatal to its case; (ii) the RTC erred in not acquitting the accused; and (iii) the prosecution failed to establish the chain of custody and integrity of the allegedly seized drugs. 17

The CA ruled that the non-presentation of the poseur-buyer, together with the fact that there was a significant distance between the location from where the officers observed the transaction and the location where the poseur-buyer and the petitioner stood during the operation, logically resulted to the prosecution's failure to establish that the transaction was one of sale of illegal drugs. Corollarily, it cannot be said that the petitioner was committing a crime in the presence of the officers. However, considering that the officers planned and organized for a buy-bust operation and during the execution of the planned operation, they personally saw the petitioner and poseur-buyer exchange certain items, the officers had a reasonable ground of suspicion based on their personal knowledge of facts and circumstances that the petitioner has committed a crime. Hence, the arrest is justified by a probable cause to believe that the petitioner committed a crime. 18

The chain of custody of the dangerous drugs confiscated by the arresting officers from the petitioner was well-established with sufficient proof that the same was never broken from the time the same were confiscated until the same were submitted before the trial court. Hence, the integrity and evidentiary value thereof were duly preserved. 19

Accordingly, the CA issued its Decision with the following decretal portion:

WHEREFORE, the Decision appealed from, being in accordance with law and the evidence is hereby AFFIRMED.

SO ORDERED. 20

Undaunted, the petitioner filed the instant petition assailing the Decision of the CA. 21 The Office of the Solicitor-General filed their comment to the petition. 22

Issues

I.

A. WHETHER THE WARRANTLESS ARREST OF PETITIONER IS VALID;

B. WHETHER THE PLASTIC SACHET ALLEGEDLY CONTAINING MARIJUANA, OBTAINED THROUGH THE WARRANTLESS ARREST, IS ADMISSIBLE; AND,

C. WHETHER THE ADDITIONAL MARIJUANA OBTAINED FROM THE SEARCH INCIDENT TO SUCH ARREST IS ADMISSIBLE.

II.

WHETHER THE PROSECUTION ESTABLISHED THE UNBROKEN CHAIN OF CUSTODY AND INTEGRITY OF THE MARIJUANA, WHICH WERE ALLEGEDLY SEIZED FROM THE PETITIONER

Our Ruling

I.A. Whether the warrantless

Generally, an arrest or seizure without a warrant issued by a competent judicial authority is invalid. However, there are certain recognized exceptions listed under Section 5, Rule 113 of the Rules of Court:

SEC. 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;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Based on the evidentiary items presented, the prosecution had established: (i) that the police operatives planned and executed a buy-bust operation; (ii) that the police operatives relied on a civilian poseur-buyer to transact with the petitioner; (iii) that the police operatives were on a car, which was parked more or less eight (8) meters to ten (10) meters away from the transaction, based on the testimony of SPO3 Pring; (iv) that the police operatives saw the poseur-buyer hand the marked money to the petitioner, and the petitioner hand one (1) plastic sachet to the poseur-buyer; (v) that the poseur-buyer executed a hand signal, which appeared to signify the completion of the alleged drug transaction; (vi) that acting on the hand signal, the police operatives effected the arrest of petitioner; and (vii) upon conducting a bodily search of the petitioner incident to the arrest, the police operatives found in the possession of the petitioner additional marijuana. The testimony of SPO3 Pring confirms these material facts, which we quote below: 23

Q You went to the target area?

A Yes, madam, at Barangay San Pablo, Guagua, Pampanga.

Q And when you arrived there, what transpired, if any?

A We parked our vehicle near the place of transaction[.] Before we parked our vehicle, our confidential informant alighted from our vehicle, and then approached the suspect, Jomer Fernando, who was standing in front of their residence.

Q And how far were you from the suspect or the target person?

A More or less, 12 meters, madam.

Q When the confidential informant approached the target person, what happened, if any?

A Our confidential informant gave the marked money to the suspect, madam, then in return the suspect handed one (1) piece small plastic sachet containing suspected marijuana leaves with fruiting tops, madam.

Q Did you see the actual exchange?

A Yes, madam, [I saw] the transaction, I saw the confidential informant hand something to the suspect, madam, and then I saw the accused hand something to our confidential informant.

SPO3 Pring remained consistent when he later testified as follows: 24

Q: Upon parking, what did you do next?

A: Our civilian informant alighted from our vehicle and approached the accused who was then standing in front of his residence, madam.

Q: What about you; (sic) did you also approach the accused, Jomer Fernando y Quiros?

A: After our civilian informant gave the one (1) piece of one hundred peso bill as marked money to the accused, in return, the accused him a (sic) one piece of small plastic sachet containing marijuana. After that, our civilian informant gave the pre-arranged signal by raising his right hand and then we proceeded to the place of transaction, madam.

Q: So, after the pre-arranged signal, you approached the accused?

A: Yes, your honor.

Q: You saw the pre-arranged signal given by the civilian informant?

A: Yes, your honor.

Q: Did you also see the exchange of marijuana given by the accused to your civilian informant?

A: Yes, your honor.

Q: Did you also see the money given by your informant to the accused?

A: Yes, your honor.

Q: When you saw all these things happening, you were standing at a distance of what?

A: I was more or less eight (8) to ten (10) meters from the accused, your honor.

The prosecution failed to present the poseur-buyer allegedly because of the latter's death. The police operatives also admitted that they did not hear the conversation between the poseur-buyer and the petitioner. In effecting the warrantless arrest, the police completely relied on: (i) the fact that they personally saw the exchange of marked money and a plastic sachet from a car parked more or less eight (8) to ten (10) meters away; (ii) the hand signal of the poseur-buyer; and (iii) upon acting on the hand signal and approaching the petitioner, their confirmation of the content of the plastic sachet.

This is not a case of in flagrante delicto arrest under Section 5 (a), Rule 113 of the Rules of Court, considering that the police operatives did not hear the conversation between the poseur-buyer and petitioner, and they were at such distance from the transaction that it was physically impossible for them to confirm that a drug sale transaction had taken place. All they could confirm was the exchange of marked money and an undistinguished item the nature of which could not be identified from their location before the poseur-buyer made the hand signal. Therefore, the alleged drug sale transaction could not be considered to have been committed in their presence. Our ruling in Sindac v. People25 is instructive:

Considering that PO3 Peñamora was at a considerable distance away from the alleged criminal transaction (five [5] to ten [10] meters), not to mention the atomity of the object thereof (0.04 gram of white crystalline substance contained in a plastic sachet), the Court finds it highly doubtful that said arresting officer was able to reasonably ascertain that any criminal activity was afoot so as to prompt him to conduct a lawful in flagrante delicto arrest and, thereupon, a warrantless search. These similar circumstances were availing in the cases of Comerciante v. People and People v. Villareal where the Court likewise invalidated the in flagrante delcito arrest and ensuing warrantless search. In this relation, it should also be pointed out that no criminal overt act could be properly attributed to Sindac so as to rouse any reasonable suspicion in the mind of either PO3 Peñamora or PO1 Asis that Sindac had just committed, was committing, or was about to commit a crime. Sindac's actuations of talking to and later on, receiving an unidentified object from Cañon, without more, should not be considered as ongoing criminal activity that would render proper an in flagrante delictoarrest under Section 5 (a), Rule 113 of the Revised Rules of Criminal Procedure.

Neither is this a case of warrantless arrest of a prisoner who has escaped confinement under Section 5 (c), Rule 113.

A valid warrantless arrest under Section 5 (b), Rule 113 requires that the following must be present: (i) an offense has just been committed; and (ii) the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. 26

In this case, the only indication that the poseur-buyer has personal knowledge of the illegal drug transaction was the hand signal. The poseur-buyer did not take the witness stand; hence, his direct and positive testimony establishing the illegal drug transaction is now lost to this Court.

Does the fact that the police did not hear the conversation preclude the finding of probable cause to effect a warrantless arrest? Is the mere sight of the exchange of marked money and a plastic sachet, coupled with the hand signal of the poseur-buyer, sufficient to establish probable cause to effect a warrantless arrest?

In merely sighting a plastic sachet from around eight (8) to ten (10) meters away, it would be physically impossible for the police operatives to confirm the content of the sachet. From this vantage point, the naked eye would not able to ascertain the nature of the content of the sachet. Unless they were aided with telescopic sight and other sensory aids, it is not ordinarily within the realm of human experience to be capable of identifying drugs contained in a plastic sachet seen from the vantage point of the police operatives in this case. Even if one were to merely glimpse a hint of green from their current vantage point, this would not be sufficient to conclude the nature of the object of their sight as marijuana. One need to see it at close contact, smell it, or touch it. This is why, in the testimony of SPO3 Pring, he merely stated that he saw the petitioner hand "something" to the poseur-buyer. It was indispensable for the poseur-buyer to execute the hand signal so that the police operatives can approach the petitioner to confirm the content of the sachet. The issue on the validity of the warrantless arrest in this case therefore rises and falls on the significance of the poseur-buyer's hand signal, and whether it was sufficient for the purpose of triggering the arrest.

In People v. Ramos, 27 We have ruled that failure to present the poseur-buyer is fatal to the prosecution's case under the following circumstances:

(1) if there is no person other than the poseur-buyer who witnessed the drug transaction;

(2) if there is no explanation for the non-appearance of the poseur-buyer and reliable eyewitnesses who could testify in his place;

(3) if the witnesses other than the poseur-buyer did not hear the conversation between the pusher and poseur-buyer; and

(4) if the accused vehemently denies selling any prohibited drugs coupled with the inconsistent testimonies of the arresting officers or coupled with the possibility that there exist reasons to believe that the arresting officers had motives to testify falsely against the appellant.

The common circumstance in the foregoing cases is that the arresting officers had no personal knowledge of the fact that an illegal drug transaction transpired. Under the factual milieu of Ramos, 28 the police officers saw the transaction between the poseur-buyer and the accused while inside a tinted car ten (10) meters away, and that prior to the buy-bust operation, they had already planned what was going to happen. The case states:

From inside the car, they saw their informant hand the premarked P100.00 bill to Ramos who, in turn, gave one (1) transparent plastic sachet suspected to contain shabu from a Vicks Vaporub jar. When the transaction was completed, the police officers quickly alighted the vehicle and advanced to the place where the sale happened. They immediately arrested the subjects and, after frisking Ramos, they recovered the Vicks Vaporub jar which contained ten (10) more plastic sachets of shabu.

Thus, We ruled in Ramos29 that the police officers had personal knowledge of the illegal drug transaction and therefore, the prosecution had proved all the elements of the illegal sale even though the poseur-buyer did not testify on how he transacted with the accused.

We must point out, however, that the more applicable precedents to the instant case are People v. Cabrillo30 and People v. Andaya, 31 which both involve a situation where the police operatives who are members of the buy-bust team did not hear the conversation between the poseur-buyer and the accused from their distance during the transaction, and merely relied on the pre-arranged hand signal to trigger the warrantless arrest. These cases are instructive in appreciating the weight of the poseur-buyer's pre-arranged signal in the event of a failure of the poseur-buyer to testify.

In Cabrillo,32 there was a seven-meter distance between the police operatives and the place of the happening of the alleged drug sale transaction. The police officers were not privy to the conversation between the poseur-buyer and accused. The poseur-buyer made a pre-arranged signal, such that after the poseur-buyer scratched his head, the police officers rushed to arrest the accused. We ruled in this case that the non-presentation of the poseur-buyer was fatal to the prosecution's case. We quote:

In this case, the seven-meter distance between the police officers waiting for the pre-arranged signal from the poseur-buyer and the accused-appellant made it difficult for the police officers, the supposed eyewitnesses, to see and to hear what exactly was happening between accused-appellant and the poseur-buyer. None of the police officers were privy to their conversation. The police officers had no personal knowledge of what transpired between accused-appellant and the poseur-buyer. The police officers merely made a sweeping statement that they saw the exchange of the buy-bust money and the seized drugs between accused-appellant and the poseur-buyer considering that there was nothing that obstructed their view. What was clearly agreed upon was the pre-arranged signal, such that after the poseur-buyer scratched his head, the police officers rushed to arrest accused-appellant. The police officers merely relied on the pre-arranged signal to signify that the transaction was consummated. The non-presentation of the poseur-buyer was fatal to the prosecution's cause to prove the fact of the illegal transaction. His testimony would have clearly established that the illegal transaction indeed took place. More so, in this case, the poseur-buyer was not familiar with accused-appellant, according to PO3 Lasque.

In addition, the prosecution failed to establish how the police officers were able to personally witness the transaction between accused-appellant and the poseur-buyer. The police officers' testimonies as to their position during the exchange contradict each other, which raises doubt as to whether they personally witnessed the illegal transaction. In his testimony, PO3 Bucao stated that he, together with the other police officers, used a multi-cab van in going to the area and they were inside said van while the transaction was going on between accused-appellant and the poseur-buyer. On the other hand, PO2 Alforque testified that PO3 Bucao accompanied the poseur-buyer in going to the area; PO3 Bucao left the poseur-buyer and hid at the back of the banana tree while the transaction was happening; while PO2 Alforque and the rest of the police officers were inside the multi-cab van. This seeming inconsistency as to the position of the police officers at the time the exchange was taking place between accused-appellant and the poseur-buyer taints the truthfulness of their assertion that they personally witnessed the transaction. If PO3 Bucao had to hide behind the banana tree, he would have, in all probability, exposed himself from the sight of the poseur-buyer. Indeed, reasonable doubt exists whether the police officers personally witnessed the consummation of the illegal transaction. As this Court stated, the police officers merely relied on the pre-arranged signal to know that the transaction was consummated. That was the time they rushed to arrest accused-appellant. 33

In the case of Cabrillo, 34 We reiterated the ruling in Andaya35 that:

[I]f the arresting lawmen arrested the accused based on the pre-arranged signal from the confidential informant who acted as the poseur buyer, his non-presentation must be credibly explained and the transaction established by other ways in order to satisfy the quantum of proof beyond reasonable doubt because the arresting lawmen did not themselves participate in the buy-bust transaction with the accused.

This Court further observed in Andaya36 found that the members of the buy-bust team relied on the pre-arranged signal from the poseur-buyer. The team arrested the accused solely on this basis, as none of the members of the team had directly witnessed the transaction due to their distance from the transaction. We quote: 37

Here, the confidential informant was not a police officer. He was designated to be the poseur buyer himself. It is notable that the members of the buy-bust team arrested Andaya on the basis of the pre-arranged signal from the poseur buyer. The pre-arranged signal signified to the members of the buy-bust team that the transaction had been consummated between the poseur buyer and Andaya. However, the State did not present the confidential informant/poseur buyer during the trial to describe how exactly the transaction between him and Andaya had taken place. There would have been no issue against that, except that none of the members of the buy-bust team had directly witnessed the transaction, if any, between Andaya and the poseur buyer due to their being positioned at a distance from the poseur buyer and Andaya at the moment of the supposed transaction.

Applying the rulings in Cabrillo 38 and Andaya, 39 We find that the failure to present the poseur-buyer is fatal to establish a valid warrantless arrest under Section 5 (b), Rule 113. The witnesses other than the poseur-buyer did not hear the conversation between the petitioner and poseur-buyer. The mere testimony of the police operatives in a buy-bust operation that the poseur-buyer made a pre-arranged signal is fatal to the prosecution's case, if the poseur-buyer did not take the witness stand.

One might add that the pre-arranged hand signal should be interpreted within the context of a planned and organized buy-bust operation. One could speculate that the police operatives and the poseur-buyer had a prior understanding as to the use of that specific hand signal as a signifier of the consummation of an illegal drug transaction within the specific context of the buy-bust operation. However, the meaning of the hand signal is lost to this Court, since the poseur-buyer (who made the hand signal) did not testify and the petitioner did not have the opportunity to cross-examine him. Some material questions could have been asked from the poseur-buyer, such as: (i) Why did he make the hand signal? (ii) What is the meaning of this specific hand signal? (iii) Was there a prior understanding with the buy-bust team that this specific hand signal signifies the consummation of an illegal drug transaction? (iv) Did he deliberately make that hand signal to signify that he witnessed the consummation of the transaction? And (v) was there a consummated sale transaction between the petitioner and the poseur-buyer? We will never know the answers, precisely because the poseur-buyer did not testify.

The non-presentation of the poseur-buyer was also not sufficiently explained by the respondent. The failure of the prosecution to present the poseur-buyer was because of the latter's alleged death. However, this claim was not substantiated and no proof of the poseur-buyer's death was presented. 40

Hence, the prosecution failed to establish that there was a probable cause, based on personal knowledge, to cause the warrantless arrest.

I.B. Whether the plasticmarijuana, which was obtained

The police operatives recovered two specimens of dangerous drugs pursuant to the buy-bust operation: (i) the sachet of marijuana obtained during the warrantless arrest and is allegedly the subject of the illegal sale transaction, and (ii) the specimen of marijuana obtained from the petitioner during the ensuing search incident to the arrest.

We hold that both specimens are inadmissible and excluded as evidence in this case, but for different reasons.

The first specimen of marijuana was not the product of a search. SPO3 Pring testified that when the police operatives were conducting the buy-bust operation, he saw the petitioner hand something to the poseur-buyer. The poseur-buyer made the hand signal and the police operatives effected the arrest. However, at the time of the arrest, the plastic sachet was no longer in the hand of the petitioner, but in the hand of the poseur-buyer. At that time, no search was necessary to yield the first specimen of marijuana, since it was already handed over to the poseur-buyer pursuant to an alleged illegal sale transaction. The seizure of the first specimen of marijuana is therefore not an instance of search incident to an arrest.

Nonetheless, the first specimen must be excluded in evidence because it was recovered pursuant to an "unreasonable seizure," which in this case is the presence of an invalid warrantless arrest. Section 2, Article III of the 1987 Constitution states:

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.

As We have ruled above, the warrantless arrest conducted upon the petitioner is invalid for the prosecution's failure to prove the presence of probable cause to effect the arrest. The invalid warrantless arrest, in the context of a buy-bust operation, yielded the first specimen of marijuana as the subject of the alleged illegal sale transaction. Thus, the first specimen was obtained pursuant to an unreasonable seizure, and therefore should be excluded as evidence. Section 3 (2), Article III of the 1987 Constitution provides that "[a]ny evidence obtained in violation of this or the preceding section [i.e., Section 2, Article III] shall be inadmissible for any purpose in any proceeding."

Records show that from the time that the poseur-buyer made the pre-arranged hand signal, the police operatives have commenced the arrest. Arrest is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody that he may be bound to answer for the commission of an offense. 41 Under Section 2 of the same rule, an arrest is effected by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making the arrest. 42

In this case, the hand signal was the trigger for the warrantless arrest. At the exact point in time that the buy-bust team responded to the hand signal, the attempt to arrest had commenced. At the time that they came into close proximity with the petitioner, there was already an arrest. We quote the Comment of the respondent, which shows the sequence of events:

After a brief interaction between the confidential informant and appellant, the former handed one hundred peso bill marked money to the latter, who in turn delivered one small plastic sachet containing marijuana with fruiting tops. After the consummation of the sale, the confidential informant raised his right hand which alerted the back-up members of the team to move and cause the arrest of appellant. PO1 Zapanta arrested appellant and informed him of his constitutional rights. On the other hand, SPO3 Pring conducted bodily search upon appellant and recovered from his possession were one (1) small piece of folded paper containing marijuana, one (1) small glass tube containing marijuana seeds and the marked 100 peso bill buy-bust money. 43

The overt acts showing the actual restraint of the person of the petitioner are not described in the pleadings with particularity. Nevertheless, the sequence of events shows that immediately after the raising of the poseur-buyer's right hand, the police operatives were alerted and "move[d] and cause[d] the arrest of [the petitioner]." 44 This is undisputed by the respondent. Moreover, in Homar v. People, 45 We ruled in this wise:

Neither the application of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is required. It is enough that there be an intention on the part of one of the parties to arrest the other, and that there be an intent on the part of the other to submit, under the belief and impression that submission is necessary."

This intent to arrest the petitioner is evidenced by the poseur-buyer's hand signal, which triggered the response from the nearby police operatives. The police operatives did not happen to be in their post by accident; they were specifically positioned about eight (8) to ten (10) meters away from the petitioner and the poseur-buyer for the express purpose of effecting a buy-bust operation. The intent to arrest from the moment that the police operatives responded to the hand signal is unmistakable. Hence, even without description of the overt acts of physical restraint, We believe that the police operatives immediately caused the arrest of the petitioner and found him in possession of the marijuana as an incident to that arrest.

Having ruled that the warrantless arrest is invalid, it follows that the marijuana contained in the plastic sachet, which was obtained through such arrest, is inadmissible. The case of Homar v. People is instructive: 46

Since the shabu was seized during an illegal arrest, its inadmissibility as evidence precludes conviction and justifies the acquittal of the petitioner.

We cannot uphold the ruling of the RTC that since the poseur-buyer did not testify on the consummation of the alleged illegal sale, the petitioner should instead be convicted of illegal possession of dangerous drugs with respect to the first specimen of marijuana. This is premised on the variance doctrine in Rule 120 of the Rules of Court, which provides:

Section 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

The RTC found that the illegal sale transaction was not sufficiently proved because of the failure of the prosecution to present the testimony of the poseur-buyer. Nevertheless, considering that the police operatives confirmed the handling of the marijuana from the petitioner to the poseur-buyer, the petitioner is convicted of the offense proved (i.e., illegal possession) which is included in the offense charged (i.e., illegal sale).

Contrary to this ruling of the RTC, the lack of testimony from the poseur-buyer is fatal in proving both illegal sale and illegal possession of drugs. The testimony of the poseur-buyer is indispensable in establishing probable cause for the warrantless arrest. Absent the poseur-buyer's testimony, the warrantless arrest is invalid and illegal, and therefore the seized first specimen of marijuana cannot be appreciated as a product of an illegal sale or even as a product of an illegal possession.

We now turn to discuss the exclusion of the second specimen of marijuana.

I.C. Whether the additionalmarijuana obtained from the

The second specimen of marijuana was obtained from the petitioner during the ensuing search after the police operatives in the buy-bust operation conducted the warrantless arrest.

A search incidental to a lawful arrest requires that there must first be a lawful arrest before a search is made. Otherwise stated, a lawful arrest must precede the search, and the process cannot be reversed. 47

We ruled in Malacat v. Court of Appeals: 48

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there first be a lawful arrest before a search can be made — the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.

In People v. Estella, 49 We cited the rationale for the rule on search incident to lawful arrest in Chimel v. California: 50

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control' — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

If the arrest preceding the search is unlawful, evidence obtained pursuant to the search is inadmissible. 51 Any evidence obtained in violation of the right against unreasonable search shall be inadmissible for any purpose in any proceeding. 52 Otherwise known as the exclusionary rule or the fruit of the poisonous tree doctrine, this rule provides that evidence obtained through unlawful search should be excluded as evidence because it is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. 53 It ensures that the fundamental rights to one's person, houses, papers, and effects are not lightly infringed upon and are upheld. 54

In this case, after the members of the buy-bust team approached and caused the arrest of the petitioner, SPO3 Pring conducted a bodily search upon the petitioner and recovered from his possession one (1) small piece of folded paper containing marijuana, one (1) small glass tube containing marijuana seeds, and the marked P100 peso bill buy-bust money. 55 These evidentiary items were in addition to the plastic sachet containing the alleged marijuana given to the poseur-buyer.

We have already ruled against the validity of the warrantless arrest. Thus, We are constrained to rule that this second specimen of marijuana obtained from the petitioner through a search incident to the unlawful arrest, is inadmissible.

In summary, We rule on the admissibility of the two specimens of marijuana recovered during the buy-bust operation, as follows:

1. The first specimen of marijuana is excluded in evidence by reason of being the product of an unreasonable seizure, specifically of an invalid warrantless arrest. The invalidity of the warrantless arrest is rooted in the failure of the prosecution to establish a probable cause for the arrest, which probable cause can only be established in this case through the testimony of the poseur-buyer (which was lacking).

2. The second specimen of marijuana is excluded in evidence by reason of a search incident to an unlawful arrest. Following from the invalidity of the preceding warrantless arrest, evidence obtained pursuant to the ensuing search is tainted with inadmissibility, pursuant to the doctrine of the fruit of the poisonous tree.

II. Whether the prosecutionmarijuana, which were

Jurisprudence states that in cases involving prosecution under R.A. No. 9165, the identity of the seized drug and/or paraphernalia must be established with moral certainty. Thus, in order to obviate any unnecessary doubts on such identity, the prosecution has to show an unbroken chain of custody over the same. It must be able to account for each link in the chain of custody over the dangerous drug/paraphernalia from the moment of seizure up to its presentation in court as evidence of the corpus delicti.56

The chain of custody is divided into four (4) links: first, the seizure and marking, if practicable, 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. 57 Notably, R.A. No. 9165, its implementing rules and regulations (IRR), and R.A. No. 10640 require that all items seized from the accused, particularly, "all dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered," must undergo the proper chain of custody procedure as provided therein in order to preserve their integrity and evidentiary value. 58

To establish the identity of the dangerous drugs with moral certainty, the prosecution must be able to account for each link in the chain of custody from the moment the drugs are seized up to their presentation in court as evidence of the crime. 59 As part of the chain of custody procedure, the law requires, inter alia, that the marking, physical inventory, and photography of the seized items be conducted immediately after seizure and confiscation of the same. 60

The petitioner claims that the chain of custody of the drugs was not established beyond reasonable doubt. First, there was variance in the weight of the allegedly seized marijuana indicated in the Confiscation Receipt and the Chemistry Report, as follows: 61

 

	Confiscation Report	Chemistry Report
"RMP 1"	1.00 grams (sic)	1.062 grams
"RMP 2"	1.30 grams	1.482 grams

 

Second, there is inconsistency in the description of the allegedly seized marijuana in the Confiscation Receipt and Chemistry Report, on the one hand, and the description of the same in the testimony of PO2 Canapi, who was a part of the buy-bust team. The Confiscation Receipt and Chemistry Report state: 62

 

"RMP 1"	One (1) folded paper containing Dried Marijuana leaves with fruiting tops, x x x.
"RMP 2"	One (1) piece heat-sealed plastic sachet containing Dried Marijuana leaves with fruiting tops, x x x.

 

PO2 Canapi testified that he received two (2) heat-sealed plastic sachets. 63 Moreover, the Laboratory Examination Request (Exhibit "I") shows that three (3) specimens (i.e., one (1) folded paper, one (1) sachet and one (1) glass tube containing suspected marijuana) were submitted for examination. 64 Essentially, the petitioner points out the inconsistency in describing the packaging of one of the specimens of marijuana: PO2 Canapi recalls that it was contained in a plastic sachet, while documentary evidence show that it was contained in a folded paper.

Third, SPO3 Pring claimed that he marked the allegedly seized drugs with his initials without specifying how and where such markings were made. 65 The records likewise do not show how the allegedly seized drugs were handled before their turnover to SPO3 Pring for their making from: (i) the poseur-buyer who allegedly bought marijuana from the petitioner; and (ii) from PO1 Zapanta who allegedly confiscated marijuana from the petitioner and to whom the poseur-buyer turned over the allegedly bought marijuana. 66

SPO3 Pring testified that he personally submitted the specimens to the crime laboratory. He would, however, contradict himself when he stated that it was one SPO2 Froilan Mendonez who brought the specimens to the crime laboratory. 67

Fourth, the testimony of the forensic chemist, Timario, pertained only to the identification of the Chemistry Report and his conduct of the qualitative examination. 68 His testimony did not specify how the allegedly seized drugs were handled before, during and after the conduct of the examination. 69 Moreover, his name appears on the stamp indicating receipt by the crime laboratory of the Laboratory Examination Request, but the same does not bear his signature. 70 Finally, the Chemistry Report only shows two (2) specimens (i.e., one (1) folded paper and one (1) sachet containing suspected marijuana) were examined despite the submission of three (3) specimens (i.e., one (1) folded paper, one (1) sachet, and one (1) glass tube containing suspected marijuana). 71

Fifth, while it was made to appear that the inventory of the seized items was done in the presence of all mandatory witnesses, a perusal of the photographs submitted would show only the DOJ representative and media representative, and there is no photograph showing that Barangay Captain Mario S. Mallari signed the inventory. Petitioner also claims that the DOJ representative signed the inventory in a different place. In fact, PO2 Canapi admitted that the picture was taken when they brought the petitioner to the house of the DOJ representative, which indicate that the witness was made to sign on a different occasion to feign compliance with the requirement of the law. 72

The respondent failed to sufficiently explain these defects in the chain of custody, as pointed out by petitioner. The respondent merely relied on the conclusion of the CA that the chain of custody was unbroken. The respondent propounded no additional and specific explanations with respect to (i) the variance in the weight of the allegedly seized drugs; (ii) the inconsistent descriptions of the seized marijuana; (iii) the handling of the drugs from the petitioner to SPO3 Pring; (iv) the handling of the drugs by the forensic chemist; and (v) compliance with mandatory witnesses.

The respondent was not without recourse in explaining these gaps and defects. Under the last paragraph of Section 21 (a), Article II of the IRR of R.A. No. 9165, 73 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.74 To warrant the application of this saving mechanism, however, the prosecution must recognize the lapse or lapses, and justify or explain them. 75 Such justification or explanation would be the basis for applying the saving mechanism. 76 In this case, the respondent did not concede such lapses, and did not even tender any specific justification or explanation for them. 77 The failure to justify or explain underscored the doubt and suspicion about the integrity of the evidence of the corpus delicti. 78

ACCORDINGLY, the appeal is GRANTED. The Decision and Resolution of the Court of Appeals dated July 19, 2019 and November 8, 2019, respectively, in CA-G.R. CR No. 40712 are SET ASIDE. The petitioner is hereby ACQUITTED for failure of the prosecution to establish illegal possession of drugs under R.A. No. 9165 beyond reasonable doubt.

The Director General of the Bureau of Corrections, Muntinlupa City is ordered to: a) immediately release the petitioner from custody unless he is being held for some other lawful cause; and b) submit his report on the action taken within five (5) days from notice.

Let an entry of final 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. 11-34.

2. Penned by Associate Justice Samuel H. Gaerlan and concurred in by Associate Justices Fernanda Lampas-Peralta and Germano Francisco D. Legaspi; id. at 41-56.

3.Id. at 58-59.

4.Id. at p. 44.

5.Id.

6.Id.

7.Id.

8.Id.

9.Id. at 55.

10.Id. at 45.

11.Id. at 42.

12.Id.

13.Id. at 42-43.

14.Id. at 43.

15.Id. at 41.

16.Id. at 41-42.

17.Id. at 45-46.

18.Id. at 51.

19.Id. at 54.

20.Id. at 56.

21.Id. at 11.

22.Id. at 142.

23.Id. at 48-49.

24.Id. at 49-50.

25. 794 Phil. 421, 433 (2016).

26.People v. Yusop y Muhammad, G.R. No. 224587, July 28, 2020.

27. 791 Phil. 162, 173 (2016).

28.Id. at 167.

29.Id. at 173.

30. G.R. No. 247657, June 8, 2020.

31. 745 Phil. 237-251 (2014).

32.Supra.

33. Emphasis supplied.

34.Supra note 30.

35.Supra note 31.

36.Id.

37.Id. at 247.

38.Supra note 30.

39.Supra, at 248.

40.Rollo, p. 21.

41.Sanchez v. People of the Philippines, 747 Phil. 552, 569-570 (2014).

42.Id.

43.Rollo, p. 146.

44.Id.

45. 768 Phil. 195, 206 (2015).

46.Id.

47.Veridiano v. People of the Philippines, 810 Phil. 642, 657 (2017).

48. 347 Phil. 462, 480 (1997).

49. 443 Phil. 669, 685 (2003).

50. 23 L. Ed. 2d 685, June 23, 1969.

51.Supra. note 47.

52. THE 1987 PHILIPPINE CONSTITUTION, Section 3, Article III.

53.People v. Cogaed, 740 Phil. 212, 241 (2014).

54.Id.

55.Rollo, p. 146.

56People v. Villalon, Jr., G.R. No. 249412, March 15, 2021.

57.Id.

58.Id.

59.People v. Cariño, G.R. No. 233336, January 14, 2019.

60.Id.

61.Rollo, p. 25.

62.Id. at 26.

63.Id.

64.Id.

65.Id. at 28.

66.Id.

67.Id. at 29.

68.Id.

69.Id. at 30.

70.Id.

71.Id.

72.Id. at 31.

73. "[N]on-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[.]"

74.People v. Reyes, 797 Phil. 671, 690 (2016).

75.Id.

76.Id.

77.Id.

78.Id.