UPDATES in RA 9165 as Amended by RA 10640

UPDATES in RA 9165 as amended by RA 10640 CHAIN OF CUSTODY (Section 21) A. Section 21 of Republic Act No. 9165 has been amended by Republic Act No. 10640 (Signed By President Aquino into law on July 15, 2014) AFTER SEIZURE OF DANGEROUS DRUGS AND/OR PARAPHERNALIA 1. Apprehending team to conduct PHYSICAL INVENTORY OF SEIZED ITEMS AND PHOTOGRAPH THEM IN THE PRESENCE OF SUSPECT FROM WHOM THEY WERE SEIZED or his representative or legal counsel. a. WITNESSES - ELECTED PUBLIC OFFICIAL (MANDATORY) - DOJ Representative OR Media Before RA 10640, the requirement was a public official, DOJ representative AND Media Witnesses will be required to sign inventory and be given copies thereof 2. PLACE OF INVENTORY a. SEARCH WARRANT - Place of Service of Warrant b. Warrantless Seizures - Place of Seizure OR - Nearest Police Station OR (Whichever is practicable) - Nearest Office of Apprehending Officer/Team (Whichever is practicable) 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. - If you are unable to strictly follow the procedure, be ready with your justification. There must be an earnest effort on your part to comply with the procedure but you were not able to comply for reasons beyond your control.

2

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 B. People v. Sander Dacuma y Lunsod (G.R. No. 205889, February 4, 2015) Links that the prosecution must establish to preserve the identity and integrity of the seized items: 1. The seizure and marking of the illegal drug recovered from the accused by the apprehending officer; 2. The turn over of the illegal drug seized by the apprehending officer to the investigating officer; 3. The turn over by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and 4. The turn over and submission of the marked illegal drug seized by the forensic chemist to the court. These requirements are necessary in order to ensure that the confiscated drug are the same ones presented in court in order to dispel unnecessary doubts as to the identity of the evidence. The prosecution must be able to account for each link in the chain of custody over the dangerous drugs, from the moment it was seized from the accused up to the time it was presented in court. IMMEDIATE MARKING IN THE PRESENCE OF WITNESSES IS VITAL Marking after seizure is the starting point in the custodial link, thus, it is vital that the seized contrabands are immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, obviating switching, planting, or contamination of evidence. SUBSTANTIAL COMPLIANCE ALLOWED The Court sanctioned substantial compliance with the procedure to establish a chain of custody, provided that the integrity and evidentiary value of the seized items are properly preserved by the apprehending team/officers. There is a liberality on minor deviations as long as there is no gross disregard of the procedural safeguards prescribed in the substantive law. However, when serious uncertainty is generated about the identity of the seized items presented in evidence, liberality ceases and presumption of innocence takes precedence over substantial compliance.

3

C. People v. Randy Rollo y Lagasca (G.R. No. 211199, March 25, 2015) SUBSTANTIAL COMPLIANCE ALLOWED Testimony that included the marking of the seized items at the police station and in the presence of the accused was sufficient in showing compliance with the rules on chain of custody. Marking upon immediate confiscation contemplates even marking at the nearest police station or office of the apprehending team The failure of the prosecution to show that the police officers conducted the required physical inventory in the place where the subject shabu was seized does not automatically render accused’s arrest illegal or the items seized from him inadmissible. PROVIDED: “non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.” Pertinently, it is the preservation of the integrity and evidentiary value of the seized items which must be proven to establish the corpus delicti. MINOR INCONSISTENCIES IN TESTIMONIES NOT FATAL Inconsistencies in the testimony of witnesses, when referring only to minor details and collateral matters, do not affect either the substance of their declaration, their veracity, or the weight of the testimony. Such minor inconsistencies even enhance their veracity as the variances erase any suspicion of a rehearsed testimony. D. People v. Charlie Sorin y Tagaylo (G.R. No. 212635, March 25, 2015) ACQUITTED DUE TO FATAL LAPSES -

Police Officer A seized the shabu from accused and turned them over to Police Officer B (Investigator) WITHOUT MARKING IT. Police Officer B did not mark the individual plastic sachets. He placed the sachets in a transparent plastic cellophane which he marked.

E. People v. Amy Dasigan (G.R. No. 206229, February 4, 2015)

4

BUY BUST. ACQUITTED IN SECTION 5, BUT FOUND GUILTY FOR SECTION 11. ACCUSED WAS ARRESTED BEFORE SHE RECEIVED THE MARKED MONEY FROM POSEUR BUYER. Where the marked money was also shown to accused-appellant but it was not actually given to her as she was immediately arrested when the shabu was handed over to the poseur-buyer, the Court held that it is material in illegal sale of dangerous drugs that the sale actually took place, and what consummates the buy-bust transaction is the delivery of the drugs to the poseur-buyer and, in turn, the seller’s receipt of the marked money. While the parties may have agreed on the selling price of the shabu and delivery of payment was intended, these do not prove the consummated sale. Receipt of the marked money, whether done before delivery of the drugs is required. Elements of Section 5: 1. Identities of the buyer and the seller, object and consideration; 2. The delivery of the thing sold and payment for it; Elements of Section 11: 1. The accused is in possession of an item or object which is identified to be a prohibited drug; 2. Such possession is not authorized by law; 3. The accused freely and consciously possessed the said drug. F. People v. Dante Dela Pena, et al., (G.R. No. 207635, February 18, 2015) SMALL SCALE DRUG PUSHING CAZN BE COMMITTED AT ANY TIME AND ANY PLACE Peddlers of illicit drugs have been known with ever increasing casualness and recklessness to offer and sell their wares for the right price to anybody, be they strangers or not. Moreover, drug pushing when done on a small-scale, like the instant case, belongs to those types of crimes that may be committed any time and at any place. SURVEILLANCE, PRE-OPERATION REPORT AND BUY-BUST MONEY ARE NOT VITAL. A surveillance, pre-operation report, and buy-bust money are not elements of, and are not vital to the prosecution for illegal A prior surveillance is not a prerequisite for the validity of an entrapment or buy-bust operation, the

5

conduct of which has no rigid or textbook method. However the police carry out its entrapment operations, for as long as the rights of the accused have not been violated in the process, the courts will not pass on the wisdom thereof. G. People v. Rowena Tapugay y Ventura (G.R. No. 200336, February 11, 2015) The integrity of the evidence is presumed to have been preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. G. People v. Eric Rosauro y Bongcawil (G.R. No. 209588, February 18, 2015) PRESENTATION EXCEPTION.

OF

INFORMANT

IS

NOT

INDISPENSABLE;

Similarly, the presentation of an informant as witness is not regarded as indispensable to the success of a prosecution of a drug-dealing accused. As a rule, the informant is not presented in court for security reasons, in view of the need to protect the informant from the retaliation of the culprit arrested through his efforts. Thereby, the confidentiality of the informant’s identity is protected in deference to his invaluable services to law enforcement. Only when the testimony of the informant is considered absolutely essential in obtaining the conviction of the culprit should the need to protect his security be disregarded. H. People v. Dennis Sumili (G.R. No. 212160, February 4, 2015) AQUITTED. UNJUSTIFIED DELAY IN TURNOVER OF DRUGS TO FORENSIC CHEMIST (2 DAY DELAY) COMPROMISED INTEGRITY OF EVIDENCE. Investigator said Crime Laboratory was closed. This was found to be false. THANK YOU FOR YOUR KIND ATTENTION.