G.R. No. 229071 - Dissenting Opinion




G.R. No. 229071, December 10, 2018, ♦ Decision, Perlata, [J] ♦ Dissenting Opinion, Leonen, [J] THIRD DIVISION [ G.R. No. 229071. December 10, 2018 ] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EANNA O'COCHLAIN, ACCUSED-APPELLANT. DISSENTING OPINION LEONEN, J.: This Court resolves the Appeal filed by Eanna O'Cochlain (O'Cochlain) from the February 9, 2016 Decision and July 21, 2016 Resolution of the Court of Appeals in CA-G.R. CR No. 36412. The Court of Appeals affirmed the November 22, 2013 Decision of the Regional Trial Court, which found O'Cochlain guilty beyond reasonable doubt of possession of illegal drugs under Article II, Section 11 of Republic Act No. 9165,1 or the Comprehensive Dangerous Drugs Act of 2002. The majority finds that: (1) there was a valid warrantless search conducted on O'Cochlain under airpmi security measures; and (2) there was no violation of Article II, Section 21 of Republic Act No. 9165 concerning the custody and disposition of confiscated, seized, or surrendered dangerous drugs. I dissent to the findings of the majority. I Conducting inspections of persons and their effects under routine airport security procedures do not trigger the constitutional right against unreasonable searches and seizures,2 as they arise from a reduced expectation of privacy.3 In Saluday v. People:4 To emphasize, a reasonable search, on the one hand, and a warrantless search, on the other, are mutually exclusive. While both State intrusions are valid even without a warrant, the underlying reasons for the absence of a warrant are different. A reasonable search arises from a reduced expectation of privacy, for which reason Section 2, Article III of the Constitution finds no application. Examples include searches done at airports, seaports, bus terminals, malls, and similar public places. In contrast, a warrantless search is presumably an "unreasonable search," but for reasons of practicality, a search warrant can be dispensed with. Examples include search incidental to a lawful arrest, search of evidence in plain view, consented search, and extensive search of a private moving vehicle.5 Nonetheless, for an inspection of passengers and their belongings under routine security procedures to be a valid reasonable search, certain conditions must be met.6 In Saluday: In both situations, the inspection of passengers and their effects prior to entry at the bus terminal and the search of the bus while in transit must also satisfy the following conditions to qualify as a valid reasonable search. First, as to the manner of the search, it must be the least intrusive and must uphold the dignity of the person or persons being searched, minimizing, if not altogether eradicating, any cause for public embarrassment, humiliation or ridicule. Second, neither can the search result from any discriminatory motive such as insidious profiling, stereotyping and other similar motives. In all instances, the fundamental rights of vulnerable identities, persons with disabilities, children and other similar groups should be protected. Third, as to the purpose of the search, it must be confined to ensuring public safety. Fourth, as to the evidence seized from the reasonable search, courts must be convinced that precautionary measures were in place to ensure that no evidence was planted against the accused.7 If the conditions are not met, then an initially reasonable search will be unreasonable. The purpose of the search must be confined to ensuring public safety.⚖ - ℒαɯρhi৷ This Court has recognized that increasing concerns over terrorism and other imminent threats to life warrant additional safety measures in public places, including the implementation of security procedures, inspections, and searches.8 However, if there is no imminent threat to life, there must be probable cause that a crime is being, or has been committed to make the search reasonable. In Dela Cruz v. People:9 The presentation of petitioner's bag for x-ray scanning was voluntary. Petitioner had the choice of whether to present the bag or not. He had the option not to travel if he did not want his bag scanned or inspected. X-ray machine scanning and actual inspection upon showing of probable cause that a crime is being or has been committed are part of reasonable security regulations to safeguard the passengers passing through ports or terminals. Probable cause is: reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law are in the place to be searched. It is not too burdensome to be considered as an affront to an ordinary person's right to travel if weighed against the safety of all passengers and the security in the port facility.10 (Emphasis supplied, citation omitted) This Court has, in several instances, upheld the validity of searches under routine security procedures, resulting in convictions for possession of illegal items because there had been probable cause. In People v. Johnson,11 during a routine frisking of departing passengers at the Ninoy Aquino International Airport, the duty frisker felt something hard on the accused's abdominal area. This aroused the suspicion of the duty frisker, who doubted the accused's explanation that she was wearing two (2) panty girdles. A subsequent search of the accused found methamphetamine hydrochloride (shabu) hidden on the accused's abdomen. In People v. Canton,12 the accused passing through the metal detector at the Ninoy Aquino International Airport triggered a beeping sound. The accused was then frisked, and shabu was discovered on her body. Similarly, in People v. Suzuki,13 the activation of a metal detector at the Bacolod Airport Terminal pre-departure area prompted officers from the Police Aviation Security Command to inspect the accused's body and the package he was carrying. A search of the package revealed marijuana. In Sales v. People,14 an Aviation Security Group on-duty member had suspicions over the accused, who had a slight bulge in his short pants pocket, but refused to show what it was. When the accused finally revealed the item, it turned out to be two (2) rolled sticks of marijuana. In People v. Cadidia,15 during a routine frisking at the Manila Domestic Airport Terminal I, the on-duty frisker noticed an unusual thickness around the accused's buttocks area. Unconvinced by the accused's explanation, the on-duty frisker conducted a more stringent body search that yielded sachets of shabu. In Dela Cruz v. People,16 when the accused placed his bag on the xray scanning machine for inspection at the Cebu Domestic Port, the operator-on-duty saw what appeared to be three (3) firearms in the bag. This alerted the port personnel, who conducted a manual inspection of the bag and discovered three (3) revolvers and four (4) live ammunitions, without proper documents. In Saluday v. People,17 during a checkpoint inspection of a bus near the Tefasco Wharf, an anny task force member noticed that one (1) small bag was heavy for its size, with the bag's owner acting suspiciously outside. A search of the bag revealed firearms and explosives. Here, it is undisputed that there was no imminent threat to life that warranted the search of the accused. He passed through routine airport security procedures at the Laoag City International Airport. At the final security check, he went through a pat-down search conducted by Security Screening Officer Dexter Suguitan (Suguitan), upon which two (2) cigarette packs were found in his possession. One (1) pack contained hand-rolled cigarette sticks. The accused explained that this was hand-rolled tobacco, but Suguitan stated that he knew the sticks had dried marijuana leaves.18 Unlike in Sales,19 the accused here did not act suspiciously during the routine inspection to believe that he was committing, or had committed an offense. No metal detectors or x-ray machines were triggered, and the pat down of the accused did not yield any suspicious materials apart from hand rolled cigarettes. Notably, Suguitan claimed that he knew the sticks were marijuana because Security and Intelligence Flor Tamayo, of the Civil Aviation Authority of the Philippines, had earlier told him that he saw a Caucasian man smoking at the parking space in front of the airport departure area. The area smelled like marijuana, even though no smoke came out of the man's mouth.20 Suguitan himself did not know of any suspicious activities of the accused that would have warranted his conclusion that the accused's hand rolled cigarettes contained marijuana. To emphasize, probable cause that a crime is or has been committed requires "reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense charged."21 The mere possession of hand-rolled cigarettes is not by itself suspicious. Likewise, hearsay tips or secondhand knowledge of allegedly suspicious behavior cannot be a ground to believe that a person is committing or has committed a crime. For a valid finding of probable cause, law enforcers and their agents must have, based on observation, personally known the facts of the commission of a crime.22 II For the majority, the integrity of the evidence is presumed to be preserved unless there is bad faith, ill will, or proof of tampering, to which the defendant has the burden of showing. This is to overcome a presumption of regularity in the public officers' handling of the exhibits, and the presumption that the public officers properly discharged their duties.23 However, the presumption of regularity must yield to the constitutional presumption of innocence24 and requirement of proof beyond reasonable doubt.25 The general rule remains that there must be strict compliance with Section 2126 of Republic Act No. 9165,27 due to the characteristics of illegal drugs as not readily identifiable, and vulnerable "to tampering, alteration, or substitution by accident or otherwise."28 The prosecution's failure to show compliance with the mandatory procedures in Section 21 of Republic Act No. 9165 creates reasonable doubt on the very corpus delicti of the offense charged.29 Noncompliance is a ground for the accused's acquittal.30 Searches and seizures of drugs found under routine security procedures must still comply with Section 21 of Republic Act No. 9165. Neither the express text of the provision nor its implementing rules and regulations carve out an exception for airport searches. This Court has consistently evaluated the integrity of dangerous drugs seized during such searches, as well as the preservation of the chain of custody, against the mandatory requirements of Section 21.31 Despite the majority's citation of United States jurisprudence on the establishment of chain of custody on a rational basis,32 this Court has consistently held that the illegal drug's identity must be proved with moral certainty, "established with the same degree of certitude as that needed to sustain a guilty verdict."33 The four (4) links in the chain of custody of the confiscated item must be established: Thus, the following links should be established in the chain of custody of the confiscated item: 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 from the forensic chemist to the court.34 (Citation omitted) The presumption of regularity of performance of official duty only arises when it can be shown that the apprehending officer followed the requirements in Section 21 of Republic Act No. 9165, or met the conditions for the saving clause in the Implementing Rules and Regulations of Republic Act No. 9165.35 As to the latter: All the above requirements must be complied with for a successful prosecution for the crime of illegal sale and possession of drugs under Sections 5 and 11 of RA 9165. Any deviation in the mandatory procedure must be satisfactorily justified by the apprehending officers. Under Section 21 of the IRR, the Court may allow deviation from the procedure only where the following requisites concur: (a) the existence of justifiable grounds to allow departure from the rule on strict compliance; and (b) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. If these two elements are present, the seizure and custody over the confiscated items shall not be rendered void and invalid.36 (Citation omitted) Here, several deviations from the procedures in Section 21 of Republic Act No. 9165 cast in doubt the links in the chain of custody of the seized items. First, Suguitan made no immediate marking, physical inventory, and photograph of the seized items.37 Instead, the seized items were merely placed on a screening table at the final checkpoint area.38 Second, there was no immediate turnover of the seized items from Suguitan to Police Officer 3 Joel Javier, the investigator on duty for the Philippine National Police-Airport Security Group.39 Moreover, it was Javier, instead of Suguitan, who marked the seized items with "EO-1" and "EO-2," and inventoried them in the presence of two (2) barangay officials and a member of the media.40 Justifying these deviations, the majority pointed out that the apprehending officers could not have observed the rule due to the crowded final checkpoint area. This made it necessary for the seized items to be brought to the Philippine National Police-Airport Security Group office. The delay in the inventory, marking, and even turnover of the seized items to the forensic laboratory were all justified as the apprehending officers' preoccupation with accomplishing the necessary documentation for the arrest and seizure.41 However, the integrity of the items' initial seizure and marking, and their turnover have already been put in doubt. No explanation was made as to why Suguitan did not immediately turn over the seized items to Javier, despite allegedly being present when Javier arrived. Why the seized items were merely placed on a table at the final checkpoint area, a public space that the majority noted was crowded with departing passengers, instead of being immediately marked by Suguitan under Section 21 of Republic Act No. 9165, was also inadequately explained. The accused leaving to smoke,42 while the seized items remained in the Philippine National Police-Airport Security Group office, does not mitigate the noncompliance of the apprehending officers with the requirements of Section 21 of Republic Act No. 9165. It should have been the apprehending officers who were made to explain why the accused was permitted to leave the office, even if the inventory and turnover of the seized items had not been completed. Considering the doubts raised not only on why the officers here failed to strictly comply with Section 21 of Republic Act No. 9165, but also on the integrity of the chain of custody over the seized items, the presumption of regularity must be negated.43 In Mallillin v. People:44 Given the foregoing deviations of police officer Esternon from the standard and normal procedure in the implementation of the warrant and in taking post-seizure custody of the evidence, the blind reliance by the trial court and the Court of Appeals on the presumption of regularity in the conduct of police duty is manifestly misplaced. The presumption of regularity is merely just that - a mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth. Suffice it to say that this presumption cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt. In the present case the lack of conclusive identification of the illegal drugs allegedly seized from petitioner, coupled with the irregularity in the manner by which the same were placed under police custody before offered in court, strongly militates a finding of guilt. In our constitutional system, basic and elementary is the presupposition that the burden of proving the guilt of an accused lies on the prosecution which must rely on the strength of its own evidence and not on the weakness of the defense. The rule is invariable whatever may be the reputation of the accused, for the law presumes his innocence unless and until the contrary is shown. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.45 (Emphasis supplied, citations omitted) The doubts on the existence of probable cause for the search and seizure of the confiscated drugs, and the noncompliance with the mandatory requirements in Section 21 of Republic Act No. 9165 should be resolved in favor of the accused. ACCORDINGLY, I vote to ACQUIT respondent Eanna O'Cochlain of possession of illegal drugs under Article II, Section 11 of Republic Act No. 9165. He should be released from detention, unless he is held for some other offense. Footnotes 1 Republic Act No. 9165 (2002), art. II, sec. 11 states: SECTION 11. Possession of Dangerous Drugs. - . . . . . . . (3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana. 2 CONST. art. III, sec. 2 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 anest 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. 3 People v. Johnson, 401 Phil. 734 (2000) [Per J. Mendoza, Second Division]. 4 Saluday v. People, G.R. No. 215305, April 3, 2018, [Per J. Carpio, En Banc]. 5 Id. at 14. 6 Id. 15. 7 Id. 8 People v. Johnson, 401 Phil. 734 (2000) [Per J. Mendoza, Second Division]; People v. Suzuki, 460 Phil. 146 (2003) [Per J. Sandoval-Gutierrez, En Banc]. 9 776 Phil. 653 (2016) [Per J. Leonen, Second Division]. 10 Id. at 684-685. 11 401 Phil. 734 (2000) [Per J . Mendoza, Second Division]. 12 442 Phil. 743 (2002) [Per C.J. Davide, Jr., First Division]. 13 460 Phil. 146 (2003) [Per J. Sandoval-Guiterrez, En Banc]. 14 703 Phil. 133 (2013) [Per J. Villarama, Jr., First Division]. 15 719 Phil. 538 (2013) [Per J. Perez, Second Division]. 16 776 Phil. 653 (2016) [Per J. Leonen, Second Division]. 17 G.R. No. 215305, April 3, 2018 [Per J. Carpio, En Banc]. 18 Ponencia, p. 3. 19 703 Phil. 133 (2013) [Per J. Villarama, Jr., First Division]. 20 Ponencia, pp. 2-3. 21 Dela Cruz v. People, 776 Phil. 653, 684 (2016) [Per J. Leonen, Second Division], citing People v. Mariacos, 635 Phil. 315, 329 (2010) [Per J. Nachura, Second Division]. 22 Veridiano v. People, G.R. No. 200370, June 7, 2017, [Per J. Leonen, Second Division]. 23 Ponencia, p. 30. 24 CONST. art. III, sec. 14(2) states: SECTION 14. . . . (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. 25 People v. Holgado, et al., 741 Phil. 78 (2014) [Per J . Leonen, Third Division]; People v. Ramos, 791 Phil. 162 (2016) [Per J. Brion, Second Division]. 26 Republic Act No. 9165 (2002), sec. 21 states: SECTION 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provider, further, That a representative sample, duly weighed and recorded is retained; (5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; (7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in comt, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and (8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused and/or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH. 27 People v. Cayas, 789 Phil. 70 (2016) [Per J. Brion, Second Division]. 28 Id. at 79. See also People v. Andrada, G.R. No. 232299, June 20, 2018 [Per J. Peralta, Second Division]. 29 People v. Callejo, G.R. No. 227427, June 6, 2018, [Per J. Caguioa, Second Division]. 30 People v. Holgado, et al., 741 Phil. 78 (2014) [Per J. Leonen, Third Division]. 31 Sales v. People, 703 Phil. 133 (2013) [Per J. Villarama, Jr., First Division]; People v. Cadidia, 719 Phil. 538 (2013) [Per J. Perez, Second Division]. 32 Ponencia, p. 11. 33 People v. Lorenzo, 633 Phil. 393, 403 (2010) [Per J. Perez, Second Division]. See also Mallillin v. People, 576 Phil. 576 (2008) [Per J. Tinga, Second Division]; People v. Baga, 649 Phil. 232 (2010) [Per J. Velasco, Jr., First Division]; People v. Climaco, 687 Phil. 593 (2012) [Per J. Carpio, Second Division]; People v. Balibay, et al., 742 Phil. 746 (2014) [Per J. Perez, First Division]; People v. Que, G.R. No. 212994, January 31, 2018, [Per J. Leonen, Third Division]. 34 People v. Nandi, 639 Phil. 134, 144-145 (2010) [Per J. Mendoza, Second Division]. 35 People v. Ramirez, G.R. No. 225690, January 17, 2018, [Per J. Martires, Third Division]. 36 People v. Callejo, G.R. No. 227427, June 6, 2018 9-10 [Per J. Caguioa, Second Division]. 37 Ponencia, pp. 3-4. 38 Id. 39 Id. 40 Id. at 4. 41 Id. at 26-28. 42 Id. at 28. 43 People v. Holgado, et al., 741 Phil. 78 (2014) [Per J. Leonen, Third Division]. 44 576 Phil. 576 (2008) [Per J. Tinga, Second Division]. 45 Id. at 593. The Lawphil Project - Arellano Law Foundation