Revised Policy on the Handling, Custody and Disposition of Seized Communication and Electronic Devices

May 10, 2017

BJMP-DI STANDARD OPERATING PROCEDURE NO. 12-17

 

I. REFERENCES

a. Section 61, RA 6975 otherwise known as the DILG Act of 1991;

b. Section 20, Chapter 4, Book IV, Executive Order No. 292;

c. Section 9, para c (4),Rule II, Chapter 1, Book II, BJMP Manual Revised 2007;

d. BJMP SOP No. 2004-02 dated 14 November 2004 re: Control of Contraband and Physical Evidence;

e. Memorandum from OIC, BJMP dated 19 February 2013 re: Additional Guidelines re: BJMP SOP No. 2004-02;

f. Memorandum from Chief, BJMP dated 25 March 2010 re: Turn-over of Confiscated Communication Devices from Suspected Members of Security Threat Groups and Involved in Drug Related Cases;

g. State v. Dunn,478 So. 2d 659 (La. App. 2 Cir. 1985); CAIHTE

h. Hudson v. Palmer;468 U.S. 517 (1984);

i. BJMP-SOP-DI-012 dated 03 August 2016;

j. Consultative Meeting on Compendium of Policies on Contraband Handling and Disposition dated 13 January 2017; and

k. Recommendation of LSO re: Use of "PDL" in lieu of "inmate" pursuant to Article 10, International Covenant on Civil and Political Rights (ICCPR).

II. BACKGROUND/RATIONALE

Cellphones have been and still are phenomenal contraband in jails. Although the Bureau continuously finds effective methods in eliminating its existence, it still remains a big concern.

Contraband cellphones provide PDLs with the ability to communicate with one another and coordinate criminal activities inside and outside jails. This poses threat to the security of jail facilities, personnel, PDLs, and public safety. Through the use of cellphones, PDLs intimidate witnesses, order murders and kidnappings, continue trafficking narcotics, manipulate bank accounts, conduct identity theft, harassment and extortion activities, plan escapes, smuggle contrabands, and orchestrate gang activities and violence among others. Moreover, some of the confiscated cellphones find their way back into jail premises through visitors of inmates re-smuggling returned cellphones or through property custodians who are in connivance with affluent PDLs.

To stop this problem, extensive inspection of all items and persons going in and out of jails must be done properly and appropriate accounting and disposition of seized contraband must be carried out. DETACa

This Memorandum Circular has adopted in toto the provisions of BJMP-SOP-DI-012 to form part of the Compendium of Policies on Contraband Management and Disposition in Jails.

III. PURPOSE

Establish a uniform policy that would effectively address the current problem in the handling, custody and disposition of confiscated cellphones and other similar devices; delineate functions and responsibilities of personnel having the authority to handle and take custody of seized contrabands of these kind; create a policy as standards for the proper disposition of such item; and set specific guidelines for the conduct thereof.

This policy shall cover those devices confiscated from PDLs, visitors, and erring personnel including those found during conduct of greyhound or surprise cell search operations.

IV. OBJECTIVES

a. To eliminate PDLs' use of cellphones in jails.

b. To counter the ploy of incorrigible PDLs of facilitating re-entry of confiscated cellphones and other similar devices.

c. To account all confiscated contraband cellphones within jails through systematic handling, custody and disposition.

d. To instill to the PDLs and their visitors the seriousness of the Bureau in implementing programs aimed to prevent proliferation of such contrabands and the effect of smuggling the same in jails.

V. DEFINITION OF TERMS

Cellphone — also known as cellular or mobile phone. A small wireless device that has the same functions of a standard wired telephone but is smaller and mobile which is also capable of taking photographs, recording videos, sending and receiving short message system (SMS) or text messages, and accessing the worldwide web. aDSIHc

Censorship — refers to the reading of mail intended for or coming from a PDL except those seen during inspection; deleting portions thereof, returning or giving the same either in its entirety or in part to the sender or addressee; and removing printing of images or rendering any portion of the contents unintelligible. In its essence, censorship interferes with intended communication.

Contraband — any item or article inside the jail facility which is not issued to PDL by the BJMP; those that are prohibited by law which include but not limited to dangerous drugs, firearms and ammunitions; and those that are considered unauthorized and/or excessive based on the existing policies whether or not they pose risk.

Digital Data — for purposes of this policy, digital data shall refer to information captured, processed or stored by a computer, cellphone or any similar device as defined in the next paragraph. This information may be in the form of text documents, SMS, images, audio and video clips, call records, notes, software programs, internet log history, or any other type of data.

Other Similar Devices — any electronic device or gadget capable of capturing, recording and/or storing data, as well as sending or receiving the same to and from other device, access the internet, function as telephone line and send or receive messages. This includes but shall not be limited to smart watches, personal computers, laptop computers, notebook computer, tablet, digital cameras, surveillance devices, portable music player, sim card, USB/flash disk, CD/DVDs, memory sticks, external hard drives, and wi-fi sticks.

PDL — or a person deprived of liberty, are individuals who are incarcerated pending trial and/or final judgment. It includes all persons who are arrested, detained, imprisoned or otherwise under custody of government authorities. PDLs may be detained in jails, prisons, detention centers, "lock-ups",hospitals, rehabilitation centers or any authorized facilities.

Physical Evidence — a seized cell phone or similar device with evidentiary value and requires presentation before a court of justice or administrative tribunal in relation to a pending criminal or administrative proceeding. ETHIDa

Smuggling — the act of surreptitiously bringing or attempt to bring into or out of the jail any mobile phone or similar device. The act of sending out a device includes but shall not be limited to those intended for repair, trade, or upgrading purposes.

VI. GENERAL GUIDELINES

Confiscated communication and similar electronic devices shall be dealt with as follows:

1. PROPER HANDLING

a. Personnel who confiscated the contraband during conduct of greyhound or surprise cell search operation including those who discovered it during attempt by visitors to smuggle the same into the jail are not allowed to scrutinize its contents. However, the concerned personnel may physically inspect the article to determine the presence of any other contraband that may have been inserted or attached thereto.

b. Upon confiscation, the electronic device shall be immediately wrapped in a self-sealing transparent plastic bag. The item shall be accompanied by a duly accomplished identification tag (see Appendix "A").Two or more seized items shall be individually wrapped together with the aforesaid tag.

c. After being wrapped and labeled, the seized device shall forthwith be turned over to the jail investigator for inventory, taking of photographs, recording and documentation. If possible, the item should be photographed together with its owner or possessor. The actual physical condition of the contraband shall be emphasized in the documentation procedure.

d. Immediately after documentation, the contraband should be turned over to the intelligence officer for careful scrutiny and determination of any threat to security. cSEDTC

e. Digital data found to be compromising to security shall be immediately brought to the attention of the jail warden and reported to the Regional Office for appropriate action. If the digital data found contains information relating to a committed or planned criminal act, the same should be referred to the jail investigator who shall forthwith relay to the jail warden, if based on his/her evaluation, he/she has reason to believe that the matter requires prosecution of personalities involved or may aid to an ongoing investigation or pending criminal action in court. The matter shall be subjected into proper documentation and thereafter referred to the nearest police station for proper disposition. Information relating to drug transactions should be referred to the Philippine Drug Enforcement Agency (PDEA) for appropriate action.

f. In no case shall the intelligence personnel who have accessed the device divulge to any party personal information or date contained in the device. Otherwise, it shall give rise to an administrative liability. For purposes of this provision, personal data or information are those that do not pose threat to jail security or have nothing to do with the legitimate concerns of the Bureau such as but not limited to family pictures or videos and private text messages.

g. If after careful scrutiny, the PDL's device reveals no information considered detrimental to security, the same shall be turned over to the Physical Evidence Custodian for safekeeping pending submission to the Regional Office. When relinquishing possession of the contraband, a Chain of Custody Form (see Appendix "B") shall be accompanied by both the relinquishing and receiving parties to serve as evidence of a proper turn over. Both parties shall be given copies thereof for future reference. The same course of action shall be taken when the device is found to be password-protected or there are data that are encrypted and the PDL refuses to cooperate when asked to decrypt the same. SDAaTC

h. Contraband found containing digital data relating to a committed or planned criminal act/s as contemplated in paragraph 5, hereof or those established to be smuggled in connivance with a BJMP personnel shall be treated as physical evidence and preserved properly by the handling personnel taking due consideration of its evidentiary value and integrity. It should be protected from possible contamination such as deletion of digital data or insertion of another.

i. In the case of those confiscated during greyhound operations conducted by the Regional Office or National Headquarters, the same wrapping and labeling procedure should be observed but the contraband, after due observation of inventory and documentation process by the concerned jail personnel, should be taken into custody by the operating unit and subsequently turned over to the Property Custodian of the Operations Division of the Regional Office or that of the Directorate for Operations, as the case may be.

j. Confiscated contrabands in the custody of jail property custodian should be turned over to the Regional Office at the soonest possible time or within a period not exceeding thirty (30) days from receipt thereof for those jails having considerable proximity from the Regional Office.

2. PROPER CUSTODY

a. Personnel designated as Property/Evidence Custodian shall, upon receipt of the turned over contraband, record into his/her logbook the date and time the contraband was turned over as well as the identity and office of the personnel who handed in the item/s. He/she shall likewise record the actual physical condition of the same upon receipt when it differs from what is stated in the Chain of Custody Form. Thereafter, the contraband should be placed along with the Chain of Custody Form inside a vault or steel cabinet properly protected by a padlock. acEHCD

b. If the received contraband was seized from a PDL charged with drug trafficking defined under Republic Act 9165 (Comprehensive Dangerous Drugs Act of 2002) or terrorism under Republic Act 9732 (Human Security Act), or from a member of any national security threat groups, the same shall be forwarded to the Directorate for Intelligence for safeguarding and further evaluation of whatever information such device may contain. The turn over shall reflect in the custodian's logbook and in the Chain of Custody Form earlier accomplished by parties who took initial custody of the device.

c. The received device shall be kept safe until and unless it is ordered for release or destruction by a competent authority. In any case, the relinquishment of possession and the intended disposition shall be properly recorded in the custodian's logbook as well as in the accomplished Chain of Custody Form.

d. Contraband treated as physical evidence in any administrative or criminal proceedings shall be kept safe at all times and can be released only for presentation in court or administrative tribunal when duly issued with a writ such as the subpoena duces tecum.

e. Contrabands requested for scrutiny by other law enforcement agency in furtherance of a legitimate governmental concern shall not be released without the prior approval of the Chief, BJMP. The same shall be immediately returned to the BJMP custody upon conclusion of the activity. Such request and receipt of the device shall be properly recorded in the logbook and chain of custody form.

f. The Evidence Custodian shall render a monthly report indicating the exact number, description and other details of the contraband received for the said period. The same shall be the basis for the conduct of semestral inventory of confiscated electronic devices by the Assistant Regional Director for Operations (ARDO) or the Deputy Director of the Directorate for Operations, as the case may be. Inventory conducted by the ARDO shall be reported to the Directorate for Operations for consolidation and future reference. SDHTEC

3. DISPOSITION

To prevent the reentry of confiscated cellphones and other similar devices into jails or the possible embezzlement or replacement thereof by unscrupulous personnel, the same shall be disposed of under the conditions hereinafter provided:

a. Except for those considered as physical evidence or those found containing digital data of intelligence value as well as those belonging to visitors, all other devices in custody shall be subject to destruction either during annual celebration of the National Correctional Consciousness (NACOCO) Week, Community Relations Service (CRS) Month or upon directive of the Chief, BJMP.

b. A Contraband Disposal Committee (CDC) is hereby created which shall be composed of the Regional Director as chairperson who shall be assisted by the ARDO as vice chairperson, and the Chief of Operations, Regional Investigation and Prosecution (IP),Regional Intelligence as well as Inmates Welfare and Development (IWD) divisions as members. On the other hand, the National CDC shall be chaired by the Deputy Chief for Operations who shall be assisted by the Director for Operations, as vice chairperson, and Directors for Intelligence, IP and IWD as members.

c. The CDC shall determine which contraband should be disposed of and ensure the proper disposal thereof by means of destruction. The CDC shall likewise ensure that the destruction procedure will not cause harm to the environment and shall cause the preparation of a Certificate of Destruction (see Appendix "C") upon completion of the disposal. The Certificate shall be kept in the records of the Evidence Custodian for safekeeping and future reference. In the case of those destroyed in the regional level, the Certificate shall be forwarded to the Directorate for Operations for recording and safekeeping purposes. AScHCD

d. Prior to the actual destruction, the CDC shall examine the contrabands to determine if the same are still in the condition as they were when confiscated, and if any of the contrabands is found to be altered or did not match its description on record, the Committee shall so report in writing to the Chief, BJMP who shall forthwith order an investigation. Such contraband shall be excluded in the disposal and the CDC shall proceed with the destruction of the other contrabands.

e. In all cases, destruction shall not be made through incineration system or by any incineration-based technologies which produce a wide variety of pollutants. As much as practicable, the same shall be carried out with the use of road roller vehicles. For this purpose, coordination with the concerned regional office of the Department of Public Works and Highways may be made to secure the services of the said vehicle. In the event of its unavailability, destruction may be done either through dropping of the devices into any body of water for a specific period of time to damage their system or by putting them inside bags before repeatedly smashed with hammer until they are rendered unrecognizable. The activity must be properly documented either by taking photographs or video recording, and recorded in the Custodian's logbook.

f. Wastes generated in the destruction of the electronic devices should be disposed of in accordance with the provisions of DENR Administrative Order (DAO) No. 2013-22 dated 04 December 2013 or the Revised Procedures and Standards for the Management of Hazardous Wastes which requires that waste electronic and electrical equipment (WEEE) should be disposed only in hazardous waste treatment, storage and disposal (TSD) facilities. Coordination with the Environmental Management Bureau's regional office having jurisdiction over the TSD facility may be made should the need arises. In places where no TSD facility is located, the WEEE may be disposed in any controlled dump or solid waste disposal facilities or site being maintained by the city or municipality. In no case shall the wastes be disposed in an open dump site. AcICHD

g. Physical evidence in an administrative proceeding shall, upon termination of the case and issuance of clearance for destruction by the Hearing Officer, be included in the periodic schedule of disposal of seized electronic contrabands. Those used as exhibits in a criminal proceeding and returned to BJMP custody upon termination thereof should be included in the scheduled disposal upon obtaining express authority from the trial court. It should be understood that the receipt of the contraband by the tribunal during pendency of the case is properly recorded in the logbook and the chain of custody form. Furthermore, evidence custodian who have been found liable for altering physical evidence in his custody shall be indicted administratively and criminally in accordance with law.

h. With regard to those items seized from visitors, it must be understood that only those devices proven, after investigation, to be intended for smuggling are subject to destruction. The visitor shall be given the opportunity to prove that he/she has no intention to smuggle the device in favor of any PDL. The intent to smuggle the contraband may only be proven through the overt act of the possessor when the item was discovered or by the affirmative statement of the PDL whom he/she is about to visit and/or by any other person who have personal knowledge about the intended smuggling of the contraband. Any device seized from visitor shall not be summarily destroyed unless the intent to smuggle is adequately proven. Nonetheless, the Chief, BJMP and/or the concerned Regional Director shall have the authority to decide whether the item will be returned to the visitor in which case, proper documentation shall be observed. TAIaHE

i. A database of personalities caught in possession of or smuggling such type of contraband in jails should be maintained by the Directorate for Intelligence to aid in determining how frequent they violate jail rules and policies as well as identifying those involved in illegal activities.

j. In places where a local legislation or ordinance provides for the prohibition and disposition of cellphones and similar devices being smuggled by visitors in jails, those so confiscated should be disposed of in accordance with the provisions laid down in the said legislation/ordinance. In relation thereto, wardens are encouraged to coordinate with the respective local government units for the enactment of ordinance to that effect.

k. Provided, that in the case where destruction of the contraband is required in the ordinance, the wastes generated in the conduct thereof should be disposed of in accordance with the provision of DAO No. 2013-22. Provided, further, that prior to the actual destruction, provisions of paragraphs (d) and (e) hereof should be observed.

VII. PENALTY CLAUSE

Personnel found violating any provision of this policy shall be charged administratively in accordance with the 2017 Comprehensive BJMP Administrative Disciplinary Machinery without prejudice for possible prosecution for any violation committed under Section 48 of Republic Act No. 9003 with regard to the manner of disposing destroyed contrabands.

VIII. REPEALING CLAUSE

All existing issuances which are inconsistent with this policy are hereby rescinded or modified accordingly.

IX. SEPARABILITY CLAUSE

In the event that any provision or part of this SOP has been declared unauthorized or rendered invalid by a competent authority, those provisions not so affected by such declaration shall remain valid and effective. cDHAES

X. EFFECTIVITY

This policy shall take effect immediately.

Prepared by:

(SGD.) JO3 DOMINGO C. DAVID, JR.OIC, Plans, Programs, Policy and Organization Section, IOD-DI

Noted by:

(SGD.) ARNEL S. GONGONA, DSCJail Senior Superintendent

Reviewed by:

(SGD.) ALLAN S. IRAL, CESEJail Chief Superintendent

Approved by:

(SGD.) SERAFIN P. BARRETTO JR.,CESO IVJail Director

APPENDIX A

 

CPMC Form No. 1B

Electronic Gadget Contraband Tag

Region
Name of Jail
Date & Time Confiscated
Make/Kind/Model
IMEI/Serial No.
Owner (if known)
Cell & Offense (if inmate)
Address (if visitor)
Inmate Visited
Area/Dorm where the item was found
Seizing Officer
Remarks

 

APPENDIX B

Chain of Custody Form

 

APPENDIX C

Republic of the PhilippinesBUREAU OF JAIL MANAGEMENT AND PENOLOGY________________________(Name of Office)_______________________(Address)

CONTRABAND DISPOSAL COMMITTEE

CPMC Form No. 7

CERTIFICATE OF DESTRUCTION

This is to certify that the confiscated communication/electronic devices listed below were destroyed and rendered no longer usable, workable, or identifiable as in their original form pursuant to BJMP SOP No. ODI-_____ dated ____________ 2017 and have been disposed of in an environmentally safe appropriate manner.

 

 

Completed this _____ day of ____________, 2017 at ________________________.

 

(Director, DIWD/Chief, IWDD)

(Director, DO/Chief, OD)

(Director, DI/Chief, RID)

(Director, DIP/Chief, RIPD)

(DCO, BJMP/ARDO)

APPENDIX D

Procedure in the Handling, Custody and Disposition of Seized Electronic Contraband and Similar Devices