Dear Atty. Gab,

Musta Atty! I hope this message finds you well. My name is Gregorio Panganiban, and I am writing to you out of deep concern for my nephew, Daniel. Last week, Daniel was arrested in an alleged buy-bust operation near our home in Barangay San Roque, Antipolo City. The police claim he sold a small sachet of shabu to an undercover officer for P500.

We are devastated and confused because Daniel has always been a good kid, just maybe easily influenced. What worries us more are the circumstances of his arrest. According to witnesses, including our neighbor Mrs. Santos, the police officers who arrested Daniel didn’t seem to follow proper procedures. They arrested him, took the alleged sachet and the marked money, but they didn’t do any inventory or take photos of the items right there at the scene. There were no barangay officials or media representatives present during the arrest either.

They just took Daniel straight to the police station. It was only at the station, maybe an hour later, that they apparently marked the sachet and prepared some documents. We weren’t allowed to see Daniel immediately, and we only found out about the specifics later. We fear this might be a case of ‘tanim-ebidensya’ or at least serious procedural errors.

My question is, Atty. Gab, can the case against my nephew proceed even if the police didn’t strictly follow the rules for handling evidence, like the on-site inventory and photos? Does the failure to follow these steps automatically mean the evidence is inadmissible or that the arrest was illegal? We feel helpless and don’t know how these lapses affect his rights. Any guidance you can offer would be greatly appreciated.

Salamat po,

Gregorio Panganiban

Dear Gregorio,

Thank you for reaching out, and I understand your deep concern for your nephew, Daniel. It’s distressing when a family member faces such serious charges, especially when questions arise about the procedures followed during the arrest.

In situations involving alleged violations of the Comprehensive Dangerous Drugs Act (Republic Act No. 9165), particularly illegal sale, the prosecution must prove certain elements beyond reasonable doubt. These include the identity of the buyer and seller, the transaction itself (delivery of the drug and payment), and critically, the presentation of the seized drug (the corpus delicti) in court. The law sets specific procedures for handling seized drugs to ensure their integrity. While strict compliance is ideal, the law does recognize situations where non-compliance might occur. The crucial factor often becomes whether the integrity and evidentiary value of the seized item were properly preserved despite procedural deviations. Let’s delve deeper into this.

Navigating Drug Arrests: Understanding Buy-Bust Operations and Chain of Custody

To secure a conviction for the illegal sale of dangerous drugs under Section 5, Article II of Republic Act No. 9165, the prosecution carries the burden of proving two essential elements:

(1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and payment therefor.

This means they must clearly establish that a transaction occurred where your nephew allegedly sold the prohibited substance to the poseur-buyer in exchange for money. The presentation in court of the actual drug seized, known as the corpus delicti (the body of the crime), is indispensable. The identity and integrity of this substance must be proven with moral certainty, meaning it must be established that the drug presented in court is the exact same drug seized during the operation.

To safeguard the integrity of the seized evidence, Section 21 of R.A. 9165 outlines a specific procedure, often called the chain of custody rule. This procedure is designed to prevent tampering, substitution, or contamination of the evidence. The law generally requires:

(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.

This step – the immediate physical inventory and photographing at the place of arrest or the nearest police station/office – is a critical safeguard. The presence of the accused (or representative/counsel) and the insulating witnesses (media, DOJ, elected official) is intended to ensure transparency and prevent planting of evidence or other irregularities.

However, the law itself, particularly through its Implementing Rules and Regulations (IRR), recognizes that strict adherence might not always be possible. The IRR provides a crucial exception:

Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and 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.

This means that failure to strictly follow the inventory and photography requirements under Section 21 does not automatically invalidate the seizure or render the evidence inadmissible. The prosecution can still proceed if they can demonstrate two things: (1) there were justifiable grounds for the non-compliance (which they must explain), and more importantly, (2) the integrity and evidentiary value of the seized drugs were preserved throughout the process.

How is integrity preserved despite procedural lapses? The prosecution needs to show an unbroken chain of custody. This involves testimony detailing every link: how the item was seized, who handled it, where it was kept, and the condition in which it was transferred, from the moment of seizure until its presentation in court. Key steps often include the immediate marking of the seized item by the apprehending officer (usually with their initials and date) upon seizure or at the police station, proper recording, and safe handling during transport to the crime laboratory and eventually to the court. If the prosecution can convincingly prove that the item marked at the station, tested by the chemist, and presented in court is the very same item seized from your nephew, the procedural lapse might be excused by the courts.

It is also vital to note that defenses related to non-compliance with Section 21 should ideally be raised during the trial. Failure to question the procedures or the integrity of the evidence at the earliest opportunity might weaken the defense’s position on appeal. The defense cannot simply rely on the police’s non-compliance; they must actively challenge the prosecution’s evidence regarding the identity and integrity of the corpus delicti.

Practical Advice for Your Situation

• Engage Legal Counsel Immediately: Daniel needs a lawyer who can scrutinize the details of the arrest and the handling of evidence. An experienced lawyer is crucial for navigating the complexities of drug cases.
• Document Everything: Write down everything you and any witnesses remember about the arrest, focusing on the actions (or inaction) of the police regarding the inventory, photography, and presence of witnesses. Note times, locations, and officer details if possible.
• Raise Objections During Trial: Daniel’s lawyer must vigorously question the police officers during trial about their failure to comply with Section 21 procedures and challenge the integrity of the chain of custody. This must be done formally in court.
• Identify Justifiable Grounds (or lack thereof): The prosecution must provide valid reasons for not conducting the inventory/photography immediately. Your lawyer should challenge the justification offered, if any.
• Focus on Integrity Preservation: Even with procedural lapses, the core issue is whether the drug’s integrity was maintained. Investigate how the sachet was marked, handled, and stored from seizure to presentation.
• Gather Witness Testimonies: Statements from witnesses like Mrs. Santos who observed the lack of procedure at the scene can be valuable in challenging the regularity of the operation.
• Explore Defense of Denial/Frame-up: While denial alone is often weak against positive identification, coupling it with evidence of procedural irregularities and potential ill motive strengthens the defense, challenging the presumption of regularity in police duties.
• Verify Coordination with PDEA: Check if the required pre-operation coordination with the Philippine Drug Enforcement Agency (PDEA) was done, as this is another procedural requirement.

Dealing with such a situation is undoubtedly difficult. While procedural shortcomings by the police do not automatically guarantee an acquittal, they create significant issues that a competent defense lawyer can use to challenge the prosecution’s case, particularly regarding the identity and integrity of the evidence – the very foundation of a drug conviction.

Hope this helps!

Sincerely,
Atty. Gabriel Ablola

For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.