FOUR CARDINAL PRINCIPLES IN DETERMINING COMPLIANCE WITH PRESCRIBED PROCEDURES ON THE SEIZURE AND CUSTODY OF DANGEROUS DRUGS

Clarence Paul V. Oaminal*

As of 2009, among the 100,000 drug cases filed and pending before our courts, only 25 percent have been resolved. Majority of the resolved cases were decided in favor of the accused, either for dismissal or acquittal. In 2010, approximately 70 to 80 percent of the cases resolved were dismissed. Worse, there are even Regional Trial Courts that have a record of 90 percent acquittals. Admittedly, there are law enforcers who are ignorant or are playing ignorant about the requirements of the law. However, there are also prosecutors and judges who have misinterpreted the law. We cannot assume malice with respect to these dismissals, as the Supreme Court has likewise made numerous interpretations of the law. There are judges who interpret the law liberally and others who construe it very strictly. This confusion, however, could be resolved by a clear and categorical explanation of the law. The intent of this short article is to guide the judiciary and our prosecutors in drug complaints and cases. The procedure could be summarized in four so-called cardinal principles, thus: 1. In all anti-drug operations there must be a physical inventory and photography. Whether the seizure is by virtue of warrantless seizure or in the implementation of a search warrant there must a physical inventory and photography. What is a physical inventory and photography? Former DOJ Secretary Raul M. Gonzalez timely issued a circular during the height of the Alabang Boys controversy. Item number one of the circular is quoted hereunder: In the interest of the service, and as recommended by the Dangerous Drugs Board (DDB) Vice Chairman, Undersecretary Clarence Paul V. Oaminal, this Office
* Former Vice Chairman and Undersecretary, Dangerous Drugs Board.

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hereby makes the following observations relative to the Supreme Courts ruling in People of the Philippine vs. Salvador Sanchez Y Espiritu, G.R. No. 175832, October 15, 2008 on the necessity of complying with prescribed procedures on the seizure and custody of dangerous drugs: 1. Physical inventory and photography of seized and confiscated drugs are required in anti-drug operations.- Section 21 (1), Article II of Republic Act 9165 Comprehensive Dangerous Drugs Act of 2002 and its Implementing Rules and Regulations (IRR) require that after seizure and confiscation of drugs, police officers shall immediately physically inventory and photograph the same in the presence of the following persons: a. the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, b. a representative from the media,

c. a representative from the Department of Justice (DOJ), and d. any elected public official who shall sign, and be given copies, of the inventory. (DOJ Circular No. 3, January 19, 2009) Parenthetically, anti-drug operations could be categorized into two: first, warrantless seizures commonly committed through buy-bust operations and checkpoints, and second, through raids aided with search warrants. The rule of thumb is that whatever the means of seizure there must be a physical inventory and photography. The rationale why the framers of the law imbedded this proviso is to avoid allegations of robbery, thievery and planting of evidence by law enforcement officers. That is the reason why there is the presence of other personalities other than the law enforcement officers. Aside from protecting the person/s subject of the seizure, the law enforcement officer is likewise protected from any allegations of irregularities. A physical inventory is a document where the searching officers shall make an entry of the approximate quantity of the drugs and other items seized, the names and positions of witnesses and the person subject of the search. The conduct of the physical inventory shall likewise be photographed. This requirement is entirely different from what is mandated by the Rules of Court. Noting that even if the seizure is made without a warrant, the law enforcement officer is still required to conduct a physical inventory. Under the Revised Rules on Criminal Procedure, there are two documents to be complied with: a RECEIPT FOR THE PROPERTY SEIZED and a TRUE INVENTORY DULY VERIFIED UNDER OATH. VOLUME 36 NUMBER 1 (APRIL 2011) 8 7
Four Cardinal Principles in Determining Compliance with Prescribed Procedures on the Seizure and Custody of Dangerous Drugs

Therefore, law enforcement officers implementing and serving a search warrant for violations of Republic Act 9165 are required to comply with the following documentary requirements: 1. Receipt for the property seized 2. True inventory duly verified under oath 3. Physical Inventory and Photograph 2. The only difference in the conduct of the physical inventory and photography is the venue or situs, depending on the nature of the anti-drug operation. One of the contentious issues in the conduct of the physical inventory and photography is venue. This is the crux of the controversy of the Alabang Boys, as State Prosecutors insisted that the inventory should have been conducted in Alabang where the buy bust was conducted. The PDEA on the other hand insisted that it was correct for them to conduct the physical inventory and photography at their Headquarters at Barangay Pinahan, Quezon City. DOJ Circular No. 3 is enlightening on this aspect, item no. 2 of which states: 2. All anti-drug operations require physical inventory and photography of

seized and confiscated drugs.- The mandatory nature of the requirements under Section 21(1), Article II of RA 9165 and its IRR does not distinguish between warrantless seizures and those made by virtue of a warrant. The difference merely lies in the venues of the physical inventory and photography of the seized items. Thus: a) In seizures covered by search warrants, the physical inventory and photography must be conducted in the place where the search warrant was served; b) In case of warrantless seizures such as buy-bust operation, the physical inventory and photography shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized. It is clear that if the seizure is made by virtue a search warrant it must be conducted at the place where the warrant is served. If the seizure is made at a house, bodega, warehouse or wherever, the physical inventory and photography shall be conducted thereat. This, however, is not a problem besetting the judiciary and the law enforcers. What are hounding them are warrantless seizures commonly conducted 8 8 IBP JOURNAL
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through buy-bust operations. It must be emphasized that in warrantless seizures the inventory is conducted at the nearest police station or office of the apprehending team. Illustratively, if a buy-bust operation was conducted in the middle of the street or in an alley, the inventory must then be conducted at the nearest police station if the operatives are police officers and if by other law enforcement officers such as the PDEA or NBI the inventory must be conducted in their respective offices. It would be comical to require the arresting officers to conduct the inventory in the middle of the street or in the alley. However, there are prosecutors and judges who insist that the inventory must be conducted at the place of the buy-bust operation. This misconception should be corrected. Laws should be interpreted with reason and not by ludicrous construction. It is likewise clarified that the witnesses such as elected public officials need not belong to the jurisdiction where the search was conducted. If the buy-bust operation was conducted at Brgy. X, and the office of the apprehending team is located at Brgy. Y, the elected public official serving as a witness need not come from Brgy. X. Any elected public official could be made a witness. 3. The physical inventory and photography shall be conducted after the operations, meaning the witnesses need not be present during the conduct of the buy-bust operation or in the implementation of the search warrant. When would the inventory and photography be conducted? It is outrageous to see resolutions by prosecutors in preliminary investigation and judges decisions

showing complaints and cases which are dismissed on the ground that the inventory was not conducted right after the seizure and that the witnesses were not present during the anti-drug operation. This should be carefully analyzed. Item number 1 of Section 21 Republic Act 9165 says: (1) The apprehending team having initial custody and control of the drugs shall, immediately after the seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s form whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. VOLUME 36 NUMBER 1 (APRIL 2011) 8 9
Four Cardinal Principles in Determining Compliance with Prescribed Procedures on the Seizure and Custody of Dangerous Drugs

The presence of the enumerated witnesses is therefore only required after the custody of the drugs is obtained, meaning the witnesses need not be present during the conduct of the anti-drug operations. Remember that the witnesses under Section 21 are witnesses in the physical inventory and photography as distinguished from the witnesses under the Rules on Criminal Procedure and the Revised Penal Code. There must first be custody of the drugs before the conduct of the physical inventory and photography. For example, when a PNP Unit conducts a checkpoint wherein law enforcement officers were able to seize dangerous drugs, could we say that it was wrong for them to effect a seizure in the absence of the enumerated witnesses? It is only after the seizure that the inventory in police station can be conducted. The dictum is that there must first be custody of the drugs before conducting the inventory and thereafter requiring the presence of the witnesses. Is it not stupid and careless for a law enforcement agency to tag with them the witnesses in a buybust operation? A drug pusher would not sell his drug merchandise to a poseurbuyer who is accompanied by a legal counsel, elected public official, DOJ personnel and media representatives. The law does not require the impossible. Again, the witnesses under Section 21 are witnesses in the conduct of the inventory and not witnesses in the anti-drug operations. Article 130 of the Revised Penal Code, entitled Searching domicile without witnesses makes a public officer criminally liable if he conducts a search in the absence of the person subject of the search or any member of his family or in their default two witnesses residing in the same locality. Therefore, the two-witness rule only comes into operation in the absence of the person subject of the search or any member of his family. Article 130 of the Revised Penal Code and the Rules on Criminal Procedure (Rule 126, Section 8) are provisos on the persons required in the conduct of the search while Section 21 of Republic Act 9165 are witnesses in the conduct of the inventory. The correct scenario is that in the service of a search warrant, the inventory and photography shall be conducted after custody is obtained of the drugs it is

only then that the presence of the witnesses enumerated in Section 21 are required. It would be wrong to say that right after the buy-bust operation, the inventory shall then be immediately conducted, because the inventory is required to be conducted at the station or office and not at the place where the buy-bust operation was conducted. 9 0 IBP JOURNAL
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4. Non-observance of the prescribed procedures does not automatically mean that the seizure or confiscation is invalid or illegal, as long as the law enforcement officers could justify the same and could prove that the integrity and evidentiary value of the seized items are not tainted. DOJ Circular No. 3 Series of 2009, item number 3, is herein quoted: 3. In case of non-observance of the prescribed procedures, the apprehending law enforcement officers must present an explanation to justify the same, and must prove that the integrity and evidentiary value of the seized items are not tainted. While lapses in the handling of confiscated evidence in anti-drug operations may be countenanced, these lapses must be duly recognized and explained in the terms of their justifiable grounds. The integrity and evidentiary value of the evidence seized must also be shown to have been preserved. For proper guidance of all concerned, and in order to address the issue as regards the propriety of dismissing criminal complaints for violations of any of the provisions of RA 9165 (1) , Article II of RA 9165 and its IRR, it is hereby clarified pursuant to existing jurisprudence, law, rules and regulations, that the physical inventory and the photography of seized and confiscated drugs are mandatory in all anti drug operations, and compliance with these requirements must be duly proven by the apprehending law enforcement officers, PROVIDED That, in case of nonobservance of the prescribed procedure, the law enforcement officers concerned must present satisfactory explanation to justify the same, and prove through sufficient credible and competent evidence that the integrity and evidentiary value of the seized items are not tainted. The reality in the field is that there are areas where there are no media people or representatives from the DOJ. The absence of these witnesses does not automatically mean that the drug operation is invalid. Police Director General Raul Bacalzo, who is also a lawyer, has caused the issuance of a Memorandum for all PNP Units during the term of then PNP Chief Versoza requiring arresting officers to append in their complaint an Affidavit Justifying Failure to comply with Section 21. The rationale is that the police officers need not wait for the prosecutor or the counsel for the respondent to question non-compliance of the physical inventory and photography.

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