A.M. No. 15-05-136-RTC - Dissenting Opinion




A.M. No. 15-05-136-RTC, December 4, 2018, ♦ Decision, Per Curiam ♦ Separate Concurring Opinion, Per Curiam, ♦ Dissenting Opinion, Leonen, [J] ♦ Dissenting Opinion, Caguioa, [J] EN BANC [ A.M. No. 15-05-136-RTC. December 04, 2018 ] IN RE: SPECIAL REPORT ON THE ARREST OF ROGELIO M. SALAZAR, JR., SHERIFF IV, REGIONAL TRIAL COURT-OFFICE OF THE CLERK OF COURT, BOAC, MARINDUQUE, FOR VIOLATION OF REPUBLIC ACT NO. 9165, A.M. NO. P-16-3450 (FORMERLY A.M. No. 15-12-379-RTC) OFFICE OF THE COURT ADMINISTRATOR, COMPLAINANT, VS ROGELIO M. SALAZAR, JR., SHERIFF IV, REGIONAL TRIAL COURT-OFFICE OF THE CLERK OF COURT, BOAC, MARINDUQUE, RESPONDENT. DISSENTING OPINION CAGUIOA, J.: I dissent. The ponencia finds Rogelio M. Salazar, Jr. (Salazar) liable for grave misconduct and conduct prejudicial to the best interest of the service due to his drug use, despite the dismissal of the related criminal cases that had been filed against him. Consequently, Salazar is ordered dismissed from service. The ponencia points out that only substantial evidence is required to sustain a finding of administrative culpability, which it submits has been satisfied in this case. According to the ponencia, Salazar's admission of drug use, coupled with the confirmatory urine test that yielded a positive result, are more than substantial evidence to support the conclusion that Salazar is a drug-user, which would warrant the Court's exercise of its disciplinary power over court personnel. As stated at the outset, I respectfully disagree. I submit that Salazar's guilt has not been proven by substantial evidence because the pieces of evidence against him, by virtue of the illegality of the search conducted, are covered by the exclusionary rule. The exclusionary rule Article III of the 1987 Constitution provides: SEC. 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. SEC. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (Emphasis and underscoring supplied) Known as the "exclusionary rule," this Constitutional mandate renders inadmissible any evidence obtained in violation of the Constitution, for any purpose, and in any proceeding. Thus, it is immaterial that what is involved here is merely an administrative case-the exclusionary rule still applies as long as it is shown that evidence was obtained in violation of the Constitution. This Constitutional precept also embodies the "fruit of the poisonous tree" doctrine, which had been elucidated by the Court in People v. Alicando,1 to wit: We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United States. According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained. xxx2 (Additional emphasis, italics and underscoring supplied) Applying the foregoing to the present case, the admission and the confirmatory urine test should be considered as fruits of the poisonous tree because both were obtained as a result of an illegal search. The confirmatory urine test is inadmissible. The confirmatory urine test conducted on Salazar was brought about by virtue of Section 38 of Republic Act No. (R.A.) 9165 or the Comprehensive Dangerous Drugs Act of 2002, which provides: SEC. 38. Laboratory Examination or Teston Apprehended/Arrested Offenders. - Subject to Section 15 of this Act, any person apprehended or arrested for violating the provisions of this Act shall be subjected to screening laboratory examination or test within twenty-four (24) hours, if the apprehending or arresting officer has reasonable ground to believe that the person apprehended or arrested, on account of physical signs or symptoms or other visible or outward manifestation, is under the influence of dangerous drugs. If found to be positive, the results of the screening laboratory examination or test shall be challenged within fifteen (15) days after receipt of the result through a confirmatory test conducted in any accredited analytical laboratory equipment with a gas chromatograph/mass spectrometry equipment or some such modern and accepted method, if confirmed the same shall be prima facie evidence that such person has used dangerous drugs, which is without prejudice for the prosecution for other violations of the provisions of this Act: Provided, That a positive screening laboratory test must be confirmed for it to be valid in a court of law. (Emphasis and underscoring supplied) In ruling that the confirmatory urine test was not the direct or indirect result of the illegal search, the ponencia concludes that "[t]he basis for the confirmatory drug test was, in fact, a reasonable belief of drug use and a positive screening test, both of which are neither a necessary nor automatic consequence of an illegal search."3 I disagree as this statement is wholly belied by the facts and the law. A plain reading of Section 38 of R.A. 9165 shows that what triggers the "confirmatory" urine test is the initial apprehension or arrest of the accused. Here, the confirmatory urine test conducted on Salazar was triggered by his arrest occasioned by the search, which was found to be illegal. The only logical conclusion is that if it were not for the illegal search, then the police officers could not have performed the confirmatory urine test on Salazar. Consequently, contrary to the postulate of the ponencia, the urine test is a "fruit" of the illegal search. The ponencia bolsters its point by citing Section 36, Article III of R.A. 9165 which provides the mandatory drug testing of, among others, (i) officers and employees of public and private offices [Section 36(d)], and (ii) all persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day [Section 36(f)]. It also cites A.M. No. 06-1-01-SC where the Court adopted guidelines for a program to prevent drug use and eliminate the hazards of drug abuse in the Judiciary. In this regard, the ponencia makes the following pronouncements: There is thus no reason to turn a blind eye, for purposes of this administrative proceeding, on the results of the confirmatory urine test when RA 9165 itself, as well as this Court's guidelines, sanction the conduct of a mandatory random drug testing of officers and employees of public and private offices. The character of the drug test being made at random actually dispenses with the usual requirement of probable cause. In the case of Social Justice Society (SJS) v. Dangerous Drugs Board, et al., We upheld the validity and constitutionality of the mandatory but random drug testing of officers and employees of both public and private offices. This is allowed "for purposes of reducing the risk in the workplace." xxx xxxx Thus, despite the absence of probable cause, and the basis being only a positive drug test result, an employer is allowed by law to pursue an administrative case against the public or private officer or employee and thereafter, to suspend or terminate them.4 (Emphasis, italics and underscoring supplied) Once more, I cannot subscribe to the ponencia's postulations. At the outset, the ponencia's reference to Section 36(f) of R.A. 9165 (mandatory drug testing for persons charged before the prosecutor's office) is totally inapt and should not have been made, albeit only in support of a proposition, considering that the same had already been declared as unconstitutional in Social Justice Society (SJS) v. Dangerous Drugs Board.5 More importantly, the ponencia's discussion on random drug testing is totally misplaced - even merely as a supporting argument - since what is involved here cannot be characterized as random. While the ponencia states that "[t]he character of the drug test being made at random actually dispenses with the usual requirement of probable cause,"6 the same cannot be said of the confirmatory urine test. Section 38 unequivocally provides that the confirmatory urine test can be performed only "if the apprehending or arresting officer has reasonable ground to believe that the person apprehended or arrested, on account of physical signs or symptoms or other visible or outward manifestation, is under the influence of dangerous drugs."7 Thus, by the ponencia's own reasoning, there is still an element of probable cause. At this point, I quote with approval the following pronouncements of the Regional Trial Court in this case which, I submit, are more correct: In the May 4, 2017 resolution of this Court, Search Warrant No. 5043 which was obtained and used by the police was [q]uashed and declared NULL AND VOID for lack of probable cause and non-conformity in the search with the established constitutional rules and statutory guidelines. It was also declared that in the light of the nullity of Search Warrant No. 5043(15), the search conducted on its authority is likewise null and void. Based on [Section 3(2), Article III of the Constitution], any evidence obtained in violation of a person's right against unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding. All the evidence obtained as a result of such search is considered illegal, being the fruit of the poisonous tree. Ergo, even the urine test conducted on accused Salazar, having been done as a result of such arrest, occasioned by the search, is also considered as a fruit of such search, hence illegal.8 (Emphasis and underscoring supplied) That the foregoing is a factual finding by the trial court that should, as a rule, be binding on the Court, needs no further belaboring. All things considered, the confirmatory urine test imposed on Salazar should be, as it was so held by the RTC, declared inadmissible for being covered by the exclusionary rule. The admission is also inadmissible. Likewise, Salazar's admission should be declared inadmissible. The ponencia claims that the admission is not covered by the exclusionary rule because: (1) the admission partakes of a testimonial evidence, and not a "personal property" that can be the subject of a search and seizure; and (2) the admission was already far removed from the illegal search warrant that it cannot be regarded as a fruit of the poisonous tree.9 Again, I respectfully disagree. Notwithstanding the pronouncement in People v. Uy,10 as cited by the ponencia - that the evidence covered by the exclusionary rule refers to object, not testimonial evidence, which was seized in the course of an illegal search and seizure - it is still my considered view that the admission of Salazar should be considered a fruit of the poisonous tree. The Constitutional provision is clear and unambiguous, leaving no room for interpretation. It provides that any evidence obtained in violation of its mandate shall be inadmissible for any purpose and in any proceeding. It makes no distinction whatsoever as to the kind of evidence that is to be excluded. More in point too is the ruling of the Court in the landmark case of Alicando earlier mentioned, that "evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained."11 In particular, Alicando provides that "once the primary source (the 'tree') is shown to have been unlawfully obtained, any secondary or derivative evidence (the 'fruit') derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the 'fruit of the poisonous tree' is the indirect result of the same illegal act."12 As applied in this case, the illegal drugs seized is the direct result of the illegal search, while the admission and the confirmatory urine test, are the indirect results of the same illegal search - which are equally inadmissible. That is not all. Section 12, Article III of the Constitution, provides for another exclusionary rule. It states: SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. (Emphasis and underscoring supplied) In this case, there is no showing by the ponencia that Salazar was apprised of his Constitutional rights when he made the admission. Also, the records do not disclose whether Salazar was assisted by counsel during his preliminary investigation before the Provincial Prosecutor. Nor was there any showing of a valid waiver of his constitutional rights. Consequently, Salazar's admission should be declared inadmissible for having been obtained in violation of the exclusionary rule under Section 12, Article III of the Constitution. Additionally, neither was any written and signed confession on Salazar's use of dangerous drugs found nor adverted to within the records, in violation of R.A. 7438,13 thereby rendering the same inadmissible under said law. Even if admissible, the admission cannot sustain Salazar's guilt. Be that as it may, even if it were to be conceded that the admission is not covered by the exclusionary rule under either Section 3(2) or Section 12 of Article III of the Constitution, the admission made by Salazar is still not enough to hold him liable. Based on the records, Salazar's admission was only briefly mentioned in the Provincial Prosecutor's Resolution finding probable cause against him, to wit: With respect to the dangerous drug found in his urine sample, he readily admitted using drugs but he was quick to add that he had stopped doing it as he had promised her (sic) mother on her deathbed in December 2014. xxxx On the charge of illegal use of dangerous drugs, probable cause exists with the positive result of the confirmatory test conducted on the urine sample of [Salazar]. He himself admitted that he had used dangerous drugs. It is as simple as that.14 (Emphasis and underscoring supplied) In evaluating Salazar's admission, I am of the opinion that the same is not enough to hold him criminally or administratively liable. It is fundamental that the quantum of proof in administrative cases is substantial evidence, which is more than a mere scintilla of evidence, (awÞhi(or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine otherwise.15 As applied in this case, Salazar's admission cannot even be considered as substantial evidence because he made a disclaimer that he has not used drugs since 2014 (the admission in question having been made in 2015). Hence, even if Salazar's admission was admissible, it does not carry the probative value that would be enough to satisfy even the lowest quantum of proof required to hold him administratively liable. Lack of objection is inconsequential. The ponencia notes that Salazar never questioned the (1) voluntariness of his admission as well as the regularity of the preliminary investigation;16 and (2) the authenticity, validity, and regularity of the chemistry report yielding a positive finding on his use of shabu.17 Notwithstanding these observations, Salazar's lack of objection is totally inconsequential to the applicability of the exclusionary rule. It is immaterial that the accused failed to make a timely objection to the introduction of the constitutionally proscribed evidence since the lack of objection does not satisfy the heavy burden of proof that rested on the prosecution.18 As held in People v. Samontañez,19 "[i]n the absence of a valid waiver, any confession obtained from the [accused] during the police custodial investigation relative to the crime, including any other evidence secured by virtue of the said confession is inadmissible in evidence even if the same was not objected to during the trial by the counsel of the [accused]."20 Additionally, even if the admission or confession contains a grain of truth, but it was made without following the mandate of the Constitution, the same becomes inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given.21 A final note While the Court is mandated to discipline its officers and employees, it is equally mandated to uphold their constitutional rights and to temper its ruling with mercy and compassion in view of the circumstances. The supreme penalty of dismissal from service with forfeiture of all benefits is too harsh, in view of the dismissal of the criminal cases against Salazar. He had been detained for a long time and also suspended from his work on criminal charges which were eventually dismissed. He had already suffered enough. While the need to discipline court employees is recognized, the same cannot be done while disregarding the constitutional rights of the accused. Undeniably, the proliferation of dangerous drugs is a plague to society that must be eliminated. Nevertheless, this is not a license for law enforcers to disregard the rights of the individual. A violation of the law in order to enforce another cannot be countenanced - and this bears greater emphasis when the law violated is the fundamental law of the land. To do otherwise would be to sanction the erosion of the fundamental values enshrined in the Constitution. The end can never, and should never be allowed to, justify the means - especially by this Court. In view thereof, the administrative cases against Rogelio M. Salazar, Jr. should be dismissed for failure to prove his guilt by substantial evidence, as the pieces of evidence against him are covered by the exclusionary rule. Footnotes 1 321 Phil. 656 (1995). 2 Id. at 690. 3 Ponencia, p. 11. Italics supplied. 4 Id. at 12-13. 5 591 Phil. 393 (2008), 6 Ponencia, p. 12. Italics supplied. 7 R.A. 9165, Sec. 38. Underscoring supplied. 8 Rollo (A.M. No. P-16-3450), p. 179. 9 Ponencia, pp. 8-9. 10 508 Phil. 637, 655 (2005) [Third Division, Per J. Carpio Morales]. 11 Supra note 1, at 690. Additional emphasis, italics and underscoring supplied. 12 Id. Additional emphasis, italics and underscoring supplied. 13 AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING, AND INVESTIGATING OFFICERS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF, April 27, 1992. 14 Rollo (A.M. No. 15-05-136-RTC), pp. 49-50. 15 See Diaz v. The Office of the Ombudsman, G.R. No. 203217, July 2, 2018, p. 6. 16 Ponencia, p. 9. 17 Id. at 13. 18 People v. Alicando, supra note 1, at 692. Emphasis and underscoring supplied. 19 400 Phil. 703 (2000). 20 Id. at 726. Emphasis supplied. 21 See People v. Bariquit, 395 Phil. 823, 852 (2000). The Lawphil Project - Arellano Law Foundation