Irregularity in Entrapment Operations in Drug Cases

An entrapment operation is a valid way of apprehending perpetrators of sale of illegal drugs. Upon the consummation of the sale, the entrapment team is authorized to immediately arrest the seller of illegal drugs. The case would fall under the category of “in flagrante delicto” arrests, which do not require the issuance of a warrant of arrest. An “in flagrante delicto” arrest is one where the law enforcement officer witnesses that a crime has taken place or is about to take place, based on his own personal knowledge.

However, notwithstanding the fact that the police officers have personally witnessed that a sale of illegal drugs has taken place, a person apprehended through an entrapment operation can still be acquitted. This is possible if he objects to the admissibility of evidence during trial, and the most important evidence in illegal drugs cases is the confiscated drugs themselves. The Comprehensive Dangerous Drugs Law imposes a very strict procedure in handling confiscated drugs as evidence.

The case of People v. Casabuena (G.R. No. 186455, November 19, 2014) is instructive. Sometime in 2004, a group of police officers formed an entrapment team and assigned one agent as a poseur-buyer. The poseur-buyer went to the target area, with the rest of the team positioned 15 meters from the place of sale of illegal drugs. The poseur-buyer entered the seller’s house, and there conducted the sale. The accused was apprehended, and the drugs were confiscated.

However, the Supreme Court acquitted the accused because of an irregularity in the entrapment operation. Specifically, the police officers failed to undertake an inventory and to photograph the seize sachets of shabu at the place where they were seized or at the police station. Furthermore, the police officers did not even attempt to offer any justification why it failed to inventory and to photograph the seized items. The Supreme Court states, “In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and its existence is vital to sustain a judgment of conviction beyond reasonable doubt. Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti.”

The Comprehensive Dangerous Drugs Law itself provides that the apprehending officer/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.

The effect of non-compliance with the requirement to conduct an inventory and to photograph the evidence is the non-admissibility of the confiscated drugs as evidence. The judge therefore cannot consider said evidence in writing his decision. The net effect is the failure of sufficient evidence to convict. 

Respicio & Co. specializes in criminal law and defense of persons accused of drug-related offenses.

Chain of Custody Rule in Drug Cases

One of the most common defenses in the criminal prosecution of drug cases under the Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165) is the failure of the prosecution to establish the “chain of custody”. The law prescribes a strict procedure for handling object evidence, particularly the custody of confiscated dangerous drugs by law enforcement agencies and by the courts. Non-compliance with the said procedure renders the evidence non-admissible, resulting in the eventual acquittal of the accused if there is no other sufficient evidence to convict him.

Suppose a person is arrested pursuant to an entrapment operation effected by the police for the apprehension of drug traffickers. In the course of the arrest, it is a standard operating procedure for the law enforcement officer to confiscate the illegal drugs obtained in the crime scene.

Section 21 of R.A. No. 9165 directs the apprehending team having initial custody and control of the drugs to immediately undertake a physical inventory of the confiscated drugs, and to take photographs 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. The law also requires 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.

Within 24 hours upon confiscation of dangerous drugs, these must be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination. The forensic laboratory examiner must then make a certification of the forensic laboratory examination results. The said certification must be issued within 24 hours after the receipt of the subject item/s.

What if the confiscated drugs are so numerous as to render it impossible to conduct an examination within 24 hours from confiscation? In this case, a partial laboratory examination report shall be provisionally issued stating the quantities of dangerous drugs still to be examined by the forensic laboratory. However, a final certification must be issued on the completed forensic laboratory examination within the next 24 hours. In other words, the law only allows an extension period of 24 hours.

While the PDEA has custody of the confiscated drugs, the police agents file the complaint with the prosecutor, who in turn files the criminal Information in court. Seventy-two (72) hours after filing, the court must conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs. Within 24 hours thereafter, the PDEA shall then proceed with the destruction or burning of the confiscated drugs, 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 PDEA Board afterward issues 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. The sworn certification must 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.

During trial, the prosecution has the burden of proving the chain of custody — i.e., the prosecutor must prove that the sample of drugs being presented into evidence forms part of the inventory of drugs at the time and place of confiscation. Moreover, the prosecutor must prove that the said drugs which are being presented into evidence are the same substances taken from the possession of the accused.

If there are substantial gaps in the testimony of witnesses on the chain of custody of the seized dangerous drugs, these raise doubts about the authenticity of the evidence presented in court, and therefore the accused cannot be convicted beyond reasonable doubt.

Respicio & Co. specializes in criminal law and defense of persons accused of drug-related offenses.

Buy-Bust Operations

One of the most common ways in which law enforcement agencies apprehend persons accused of illegal sale of drugs is through buy-bust operations. A buy-bust operation is a form of entrapment, whereby a police agent disguised as a buyer of illegal drugs undertakes a sales transaction with a seller. Suppose, however, that there is an irregularity in the buy-bust operation, and illegal drugs are confiscated from an alleged seller, what are the remedies and defenses of the accused seller?

To convict a person for the sale of illegal drugs under the Comprehensive Dangerous Drugs Law, the prosecutor must prove the following: (a) the identities of the buyer and seller, object, and consideration; and (b) the delivery of the thing sold and the payment for it. In short, the prosecutor must prove that the sale took place, and that the accused was the seller.

There is one important requirement to convict the accused under this law: the prosecution must establish and present the “corpus delicti” or “body of the crime”, which in this case is the confiscated drugs. Concomitant to this requirement is the duty of the prosecution to establish the integrity and evidentiary value of such seized items. Absent this requirement, there is no sufficiency of evidence to convict the accused beyond reasonable doubt.

The case of People v. Sorin (G.R. No. 212635, March 25, 2015) is instructive. Here, the accused was acquitted because of an irregularity in the buy-bust operations. Specifically, the apprehending officer who seized the sachets from the accused Sorin during the buy-bust operation failed to mark the sachets and, instead, turned them over unmarked to another police officer. The latter officer was the person who marked the sachets of shabu, and who eventually took custody of the confiscated drugs and delivery to the PDEA.

According to the Supreme Court, the fact that the sachets of drugs were not marked for inventory in the presence of the apprehending officer who confiscated the drugs is fatal to the cause of the prosecution. “The Court cannot over-emphasize the significance of marking in illegal drugs cases. 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, thus, preventing switching, planting, or contamination of evidence.”

The same case occurred in People v. Sabdula (G.R. No. 184758, April 21, 2014), where the accused was also acquitted because of failure of the apprehending officer to mark the confiscated drugs in the buy-bust operations. The Supreme Court noted that due to the procedural lapse in the first link of the chain of custody, serious uncertainty hangs over the identification of the shabu that the prosecution introduced into evidence.

It is well-settled that in criminal prosecutions involving illegal drugs, the presentation of the drugs which constitute the corpus delicti of the crime calls for the necessity of proving with moral certainty that they are the same seized items. The lack of conclusive identification of the illegal drugs allegedly seized from the accused strongly militates against a finding of guilt, as in this case. As reasonable doubt persists on the identity of the drugs allegedly seized from the accused, the latter's acquittal should come as a matter of course.

Respicio & Co. specializes in criminal law and defense of persons accused of drug-related offenses.

Unreasonable Search and Seizure in Drug Cases

A person apprehended due to possession or use of illegal drugs under the Comprehensive Dangerous Drugs Law can raise the defense that he was subjected to unreasonable search by a law enforcement officer. Persons have an inviolable constitutional right under Section 2 of the Bill of Rights to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature. In short, even if the person is actually in possession of illegal drugs, the said confiscated items can still be held inadmissible in court.

The general rule is that a search warrant is required for a police officer to compel a person to allow entry in his house for the purpose of confirming the existence of illegal drugs and confiscating the same. There are several exceptions to this general rule.

One of these exceptions is warrantless search as an incident to an arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. Other exceptions include (a) search of evidence in “plain view”; (b) search of a moving vehicle; (c) consented warrantless search; (d) customs search; (e) stop and frisk; and (f) exigent and emergency circumstances.

The absence of a search warrant, when the case does not fall in any of these exceptions, is fatal to the case of the prosecution. In People v. Collado (G.R. No. 185719, June 17, 2013), the apprehending officers entered the house of the accused, where they found open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil, and pieces of used aluminum foil.

Despite this very obvious discovery of the commission of a crime (i.e. possession of illegal drugs and paraphernalia), the Supreme Court still acquitted the accused on the ground of lack of a search warrant. “The arresting officers had no personal knowledge that at the time of the arrest, accused had just committed, were committing, or were about to commit a crime, as they had no probable cause to enter the house of accused Rafael Gonzales in order to arrest them.”

A person arrested for possession of illegal drugs has the right to object to the introduction of evidence obtained from a warrantless search. The prosecution then has the burden to prove that the warrantless search falls under an exception to the general rule that a warrant is required for the search.

Respicio & Co. specializes in criminal law and defense of persons accused of drug-related offenses.