SECOND DIVISION
G.R. No. 230789, April 10, 2019
PERLY TUATES Y CHICO, PETITIONER, v. PEOPLE OF THE
PHILIPPINES, RESPONDENT.
DECISION
CAGUIOA, J.:
Before this Court is a Petition for Review on Certiorari1 (Petition) filed by
petitioner Perly Tuates y Chico (Tuates) assailing the Decision2 dated
October 27, 2016 and Resolution3 dated March 14, 2017 of the Court of
Appeals (CA) in CA-G.R. CR No. 36706, which affirmed the Decision4 dated
February 10, 2014 of the Regional Trial Court of Iba, Zambales, Branch 69
(RTC) in Criminal Case No. RTC 6736-1, finding Tuates guilty beyond
reasonable doubt of violating Section 11, Article II of Republic Act No. (RA)
9165,5 otherwise known as the Comprehensive Dangerous Drugs Act of
2002, as amended.
The Facts
The Information6 filed against Tuates pertinently reads as follows:
That on or about [the] 2nd day of March 2012 at about 1:40 o'clock (sic) in
the afternoon, in Balili Brgy. Palanginan, Municipality of Iba, Province of
Zambales, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, did then and there willfully, unlawfully and feloniously,
without any lawful authority, transport, Methamphetamine Hydrochloride, a
dangerous drug, placed in one (1) transparent plastic sachet, with a total
weight of .105 gram, without any authority, permit nor prescription to
transport the same from the appropriate agency.
CONTRARY TO LAW.7
Upon arraignment, Tuates pleaded not guilty to the offense charged.
Thereafter, pre-trial and trial ensued. The prosecution's version, as
summarized by the CA, is as follows:
Katehlene Bundang (Bundang), a Jail Guard at the Provincial Jail of
Zambales, was assigned to frisk women visitors at the jail. At around 1:40
o'clock (sic) in the afternoon of 2 March 2012, TUATES, a former detainee,
went to the Provincial Jail to visit her boyfriend, Samuel Elamparo
(Elamparo), who was charged with Violation of the Dangerous [Drugs] Act.
Bundang conducted a body search on TUATES, and while searching the lower
part of her body, Bundang found a plastic sachet containing white crystalline
substance tucked on the left side of the latter's waist. Bundang took the
sachet and went to the Office of the Jail Warden to report the matter.
Thereat, Bundang wrote her initials "KAB" on the sachet in the presence of
another Jail Guard, a certain Randy, as well as Police Officer 2 Virgilio
Fennolar (Fennolar). Forthwith, Bundang and Fennolar went to the crime
laboratory to have the seized specimen examined. The plastic sachet with
markings "KAB" was found positive for Methylamphetamine (sic)
Hydrochloride, a dangerous drug.8
On the other hand, the version of the defense, as likewise summarized by
the CA, is as follows:
Professing her innocence, TUATES vehemently denied the accusation against
her, asseverating that on 2 March 2012, she went to the Provincial Jail of
Zambales to visit her live-in partner, Elamparo, who was sick. She was let in
by a male jail guard who told her to wait as the lady jail guard, Bundang,
was not yet around.
After waiting for 30 minutes, Bundang arrived and brought her to the search
room. Bundang frisked her for more than five minutes. She was baffled why
it took long for Bundang to search her. In her previous visits, it lasted only
for less than two minutes and that there were two to four guards in the
search room. However, on that day, the search was not merely casual.
Bundang placed her hand on her (TUATES') pocket as well as inside her
pants. When Bundang took out her hand from her pants, she was surprised
when something fell out. Bundang then shouted, "O meron Ho. Hulihin na
ito." Thereafter, the other jail guards came and brought her to the office
where they asked her name and purpose in visiting the jail.
Subsequently, TUATES was brought to the crime laboratory for urine
examination which yielded a negative result.9
Ruling of the RTC
After trial on the merits, in its Decision10 dated February 10, 2014, the RTC
convicted Tuates of the crime charged. The dispositive portion of the said
Decision reads:
IN VIEW THEREOF, accused PERLY TUATES y CHICO is found GUILTY beyond
reasonable doubt of Violation of Section 11 of R.A. 9165 and is hereby
sentenced to an indeterminate penalty of imprisonment from Twelve (12)
Years and One (1) Day to Fourteen (14) Years and to pay a fine of
Php300,000.00.
The one (1) plastic sachet of methamphetamine hydrochloride weighing .105
gram is confiscated in favor of the government.11
From the testimonies of the prosecution witnesses, namely (1)
Katehlene12 Bundang (Bundang), (2) PO2 Virgilio Fennolar13 (PO2 Fennolar),
(3) PO2 Gabby Raboy, the RTC concluded that the evidence sufficiently
established all the elements of the crime charged. The RTC held that the
prosecution established an "unbroken link in the chain of custody of the
plastic sachet containing white crystalline substance which when examined
[tested] positive for methylamphetamine hydrochloride."14
Aggrieved, Tuates appealed to the CA.
Ruling of the CA
In the questioned Decision15 dated October 27, 2016, the CA affirmed the
RTC's conviction of Tuates, holding that the prosecution was able to prove
the elements of the crimes charged. The CA also held that the prosecution
was able to present an unbroken chain of custody in handling the confiscated
item. It reasoned as follows:
In reality, it is almost impossible to obtain a perfect and an unbroken chain
of custody. Thus, failure to strictly comply with Section 21(1), Article II of
R.A. No. 9165 does not necessarily render an accused person's arrest illegal
or the items seized or confiscated from him inadmissible. The most
important factor is the preservation of the integrity and evidentiary value of
the seized items. In this case, the prosecution was able to demonstrate that
the integrity and evidentiary value of the seized prohibited drug had not
been compromised because it established the crucial link in the chain of
custody of the seized items from the time it was first discovered until it was
brought to the court for examination.
Tout court, the prosecution was able to preserve unscathed and establish
the identity of the corpus delicti. First, Bundang found the illegal drug in the
appellant's possession. Second, Bundang marked the seized item with her
initials "KAB" at the Office of the Provincial Jail Warden. Third, the dangerous
drug was personally brought by Bundang and Fennolar to the SOCO for
laboratory examination. Fourth, PO2 Gabby Raboy (Raboy) received the
subject specimen from Fennolar. Fifth, Raboy turned it over to Forensic
Chemist Arlyn Dascil-Canete for laboratory examination. Sixth, the seized
item was found positive for Methylamphetamine Hydrochloride, a dangerous
drug. Clearly, the succession of events established by evidence and the
overall handling of the seized items by specified individuals all show that the
evidence seized were the same evidence subsequently identified and
testified to in open court.16
The CA thus affirmed the conviction of Tuates. She then sought
reconsideration17 of the Decision on December 2, 2016, which however was
denied by the CA in a Resolution18 dated March 14, 2017.
Thus, the present Petition.
Issue
For resolution of the Court is the issue of whether the RTC and the CA erred
in convicting Tuates of the crime charged.
The Court's Ruling
The appeal is meritorious. The Court acquits Tuates for failure of the
prosecution to prove her guilt beyond reasonable doubt.
Tuates was charged with the crime of illegal possession of dangerous drugs,
defined and penalized under Section 11 of RA 9165. To convict a person
under this charge, the prosecution must prove the following: (1) the accused
is in possession of an item or object, which is identified to be a prohibited or
regulated drug; (2) such possession is not authorized by law; and (3) the
accused freely and consciously possessed the drug.19
There is reasonable doubt, however, in the presence of the third element in
this case � that the accused freely and consciously possessed the drug.
Tuates' defense is essentially that the seized item was merely planted on her
by the jail guard who frisked her. Bundang, the jail guard, however, claims
otherwise. Bundang avers that she found the seized item tucked in Tuates'
underwear as she frisked the latter. Considering the conflicting statements
of the parties, the lower courts resolved the case in favor of the prosecution
in light of (1) the presumption of regularity in the performance of duties
accorded to Bundang, and (2) lack of showing that the police officers had ill
motive in imputing the crime to Tuates.
The Court reverses the rulings of both the RTC and the CA. As the Court said
in Mallillin v. People,20 "the blind reliance by the [RTC] and the [CA] 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."21 Verily, the presumption of regularity in the performance of duty
cannot overcome the stronger presumption of innocence in favor of the
accused.22
The presumption of regularity in the performance of duty cannot arise in the
present case because Bundang did not follow the prescribed procedure in
searching or frisking Tuates. According to the Bureau of Jail Management
and Penology Standard Operating Procedures Number 2010-05 (BJMP-SOP
2010-05) dated September 16, 2010 on the conduct of body searches on jail
visitors, the search on jail visitors should be conducted in the following
manner:
V. GENERAL POLICY
1. Searches are to be conducted in the least intrusive manner,
while ensuring accomplishment of the intended purpose, yet
maintaining respect for individual dignity and insuring the greatest
level of privacy. Personnel performing searches shall not be allowed to
talk/discuss the search they performed unless directed by the court or
warden.
2. All visitors before being allowed entry into the jail must be requested
to submit the things they carry to a thorough inspection and a
thorough body search to prevent the entry of contraband/s in our jails.
3. Money, jewelry, gadgets and other commodities of exchange shall be
duly turned over to the Property Custodian for receipting and eventual
safekeeping in a safety vault or box. It shall be duly returned to the
visitor upon his or her exit from the jail facility. All visitors who refuse
to undergo search and inspection shall be refused entry into the jail.
4. All male visitors shall be searched by male jail officers while female
visitors shall be searched by female jail officers only. At no instance
that a female homosexual jail officer shall be allowed to conduct body
search on female jail visitors while a male homosexual jail officer
cannot body search a male jail visitor. Further, no person of the
opposite sex shall be allowed to conduct or view strip searches.
5. In performing searches, sanitary gloves shall be worn by the jail
officer.
6. The search should not be more extensive than necessary to
determine the existence of contraband believed to be
concealed on the subject.
7. Strip search and Visual Body Cavity Search shall only be conducted
inside a searching room that is adequately lighted, safe and
guarantees confidentiality.
VI. GUIDELINES IN THE CONDUCT OF PAT/FRISK/RUB SEARCH FOR
VISITORS
1. All inmates' visitors who want to enter the jail facility must be
subjected to body search and inspection of their belongings.
2. To perform a pat/frisk/rub search, the jail officer shall accomplish the
following:
a. Instruct the subject to remove items from pockets, shoes,
jackets, or any extra clothing.
b. Search the subject top to bottom being systematic:
1. Shake out his/her hair;
2. Grasp the collar and feel for any hidden items.
3. Search each of the arms separately.
4. Run hands down the shirt front, checking the pocket and
stopping at the beltline. Then check the back using the
same process.
5. Once satisfied that all areas above the waist - the neck,
arms, chest, and back are clear, check the waistline to feel
for any small articles hidden.
6. From the waistline, run hands down the subject's buttocks.
7. Then move both hands to one leg. Repeat process on the
other leg.
8. Finally, run hands over the subject's lower abdomen and
crotch carefully, feeling for concealed articles that may be
taped to these areas[.]
3. If during the pat/frisk/rub search the jail officer develops
probable cause that contraband is being hidden by the subject
which is not likely to be discovered, the Jail Officer shall
request for a conduct of strip search/visual body cavity
search. (Emphasis supplied)
A pat/frisk search is defined by BJMP-SOP 2010-05 as "a search wherein
the officer pats or squeezes the subject's clothing to attempt to detect
contraband/s. For same gender searches the Pat/Frisk search is normally
accomplished in concert with Rub Search."23 In turn, a rub search is defined
as "a search wherein the officer rubs and/or pats the subject's body
over the clothing, but in a more intense and thorough manner. In a rub
search, the genital, buttocks, and breast (of females) areas are carefully
rubbed-areas which are not searched in a frisk/pat search. Rub searches
shall not be conducted on cross-gender individuals."24
In the present case, the above guidelines were not followed. Bundang
testified on the conduct of the search as follows:
Q And of course, Madam Witness, the purpose of the accused in this case when she went to
the jail was to visit her boyfriend an inmate also, correct?
A Yes, sir.
Q The boyfriend is accused of committing a Violation of Dangerous Drug Act, if you know?
A Yes, sir.
Q So Madam Witness, you brought the accused inside the frisking room?
A Yes, sir.
Q Did you strip her Madam Witness?
A Not totally, sir. ("Hindi naman masyadong hubad, sir.")
Q Not all lady visitors were searched inside the frisking room, right?
A Yes, sir.
Q But particularly you made the accused stripped because you are suspecting she's also
involved in drugs cases because her boyfriend is involved in drugs cases, is that correct?
A Yes, sir.
Q So you have very high suspicion that she's involved in drugs, right?
A Yes, sir.
Q The reason why you searched her and you brought her inside the searching room, and you
searched her, right?
A Yes, sir.
Q Madam Witness, do you know that the very reason of searching anybody to see to it that
there was no dangerous weapon tucked inside their body, nor anything else, right?
A Yes, sir.
Q Now, Madam Witness, you said you half-stripped the accused, you removed her t-
shirt?
A I raised, sir.
Q So, without you Madam Witness touching her body, you would not had (sic)
discovered those things, right?
A Yes, sir.
Q And without you also inserting your hand inside the panty or the pants, you would
not have discovered those thing (sic), right?
A Yes, sir.
Q But if you will just searched (sic) her with the clothes on Madam Witness as if it would be
a normal lady without anything illegal inside the body, correct?
A Yes, sir.
Q But you are very suspicious that she is involved in drug, you would not searched (sic) her?
A Yes, sir, all the visitors coming in.
COURT TO WITNESS:
Q What is the procedure for searching, you have to remove the clothes?
A No, your Honor. I just raised her t-shirt.
Q Why do you have to raise the clothes?
A I did not raise, I just inserted my hand, your Honor.
Q Are you allowed to insert your hand?
A Yes, your Honor.
Q Show me a regulation or a law which allow you to do that.25 (Emphasis and underscoring
supplied)
Based on Bundang's own testimony as quoted above, the search was
undoubtedly conducted irregularly or in contravention of the established
procedure. To emphasize anew, BJMP-SOP 2010-05 requires pat/frisk
searches and rub searches to be done over the jail visitor's clothing.
Bundang admitted twice that what she instead did was to raise Tuates' shirt.
This she cannot do, for a strip search may be resorted to only "[i]f during
the pat/frisk/rub search[,] the jail officer develops probable cause that
contraband is being hidden by the subject which is not likely to be
discovered."26 Further, a strip search may only be done after the
visitor agrees in writing, which is a requirement to shield the jail officer
performing the search from harassment complaints.27
In this case, there was no probable cause for a strip search � for
Bundang's only basis was that Tuates' boyfriend was a prisoner in that
particular jail for a violation of RA 9165. Moreover, Tuates never agreed in
writing to a strip search. It was thus highly irregular for Bundang to raise
Tuates' shirt in the conduct of her supposed search.
It should be noted further that when Bundang realized that what she had
done was not allowed by the rules, she then changed her testimony to the
effect that she did not raise Tuates' shirt but "just inserted [her]
hand."28 This act was also irregular because, to repeat, a pat/frisk/rub
search should be done only over the visitor's clothing.
In either case, the search conducted by Bundang was clearly not m
accordance with BJMP-SOP 2010-05. From this alone, the presumption that
she performed her duties in a regular manner was thus unmistakably
rebutted.
Further, Bundang's testimony exhibited material contradictions. Apart from
the inconsistency on whether she raised Tuates' shirt or just merely inserted
her hand inside Tuates' undergarment, Bundang also manifested in
her Sinumpaang Salaysay ng Pag-Aresto29 that she saw the plastic sachet
containing the supposed shabu tucked on the right side of Tuates'
undergarment. And yet, when she gave her direct testimony, she testified
that she found the dangerous drug tucked on the left side of Tuates' waist.30
Under different circumstances, the foregoing discrepancy may be dismissed
as immaterial � or a minor inconsistency � that does not affect the
witness' credibility or the culpability of the accused. However, considering
that the Court cannot afford Bundang the presumption of regularity in the
performance of her duties, as previously discussed, the other inconsistencies
in her testimony become material, and adds further reasonable doubt on the
existence of the third element of the charge, i.e. whether Tuates freely and
consciously possessed the drug.
Finally, it should likewise be emphasized that it is highly doubtful that an
inventory of the seized item was conducted. Both the RTC31 and the
CA32 recognized that the prosecution witnesses, particularly Bundang and
PO2 Fennolar, testified that, after confiscation, they immediately submitted
the seized item to the crime laboratory for forensic examination. PO2
Fennolar then testified that "after turning over the specimen to the crime
laboratory, they delivered it to the police station for investigation and
preparation of the documents such as the sworn statements and the receipts
of the inventory."33
The foregoing raises a question regarding the veracity of the conduct of the
inventory, for how could the police officers conduct an inventory of the
seized item when they had immediately turned over the same to the crime
laboratory?
What further militates against the veracity of the inventory was the fact that
Bundang was a signatory to the Inventory Receipt34 as the Seizing
Officer, and yet she testified that she did not know whether an
inventory was conducted.35 This was shown by the following testimony of
Bundang:
Q So from the Provincial Jail you went to the Office of the SOCO, is that what you are
saying?
A Yes, sir.
Q You would not know if there was an inventory conducted in this particular case?
A I do not know, sir.
Q If a copy of an inventory, I am showing you a copy of an inventory...
ATTY. FALLORIN:
No basis, your Honor.
PROS. FALINCHAO:
No because she said...
ATTY. FALLORIN:
The first question if she know (sic) that an inventory was conducted, the witness said she
do (sic) not know.
PROS. FALINCHAO:
There was a document. I will show her the document your Honor...
COURT:
Sustained unless she was the one who prepared the document.36 (Emphasis supplied)
The foregoing thus casts doubt on whether an inventory of the seized item
was even conducted. There is thus doubt on the integrity and evidentiary
value of the seized item � the corpus delicti of the crime.
It was therefore error for the CA to convict Tuates by principally relying only
on the presumption of regularity in the performance of duties extended in
favor of the police officers. It bears emphasis that the presumption of
regularity in the performance of duty cannot overcome the stronger
presumption of innocence in favor of the accused.37 Otherwise, a mere rule
of evidence will defeat the constitutionally enshrined right to be presumed
innocent.38 As the Court, in People v. Catalan,39 reminded the lower courts:
Both lower courts favored the members of the buy-bust team with the
presumption of regularity in the performance of their duty, mainly because
the accused did not show that they had ill motive behind his entrapment.
We hold that both lower courts committed gross error in relying on the
presumption of regularity.
Presuming that the members of the buy-bust team regularly performed their
duty was patently bereft of any factual and legal basis. We remind the
lower courts that the presumption of regularity in the performance
of duty could not prevail over the stronger presumption of innocence
favoring the accused. Otherwise, the constitutional guarantee of the
accused being presumed innocent would be held subordinate to a
mere rule of evidence allocating the burden of evidence. Where, like
here, the proof adduced against the accused has not even overcome the
presumption of innocence, the presumption of regularity in the performance
of duty could not be a factor to adjudge the accused guilty of the crime
charged.
Moreover, the regularity of the performance of their duty could not
be properly presumed in favor of the policemen because the records
were replete with indicia of their serious lapses. As a rule, a
presumed fact like the regularity of performance by a police officer
must be inferred only from an established basic fact, not plucked out
from thin air. To say it differently, it is the established basic fact
that triggers the presumed fact of regular performance. Where there is any
hint of irregularity committed by the police officers in arresting the accused
and thereafter, several of which we have earlier noted, there can be no
presumption of regularity of performance in their favor.40 (Emphasis
supplied)
In this case, the presumption of regularity cannot stand because of
the police officers' blatant disregard of the established procedures
under BJMP-SOP 2010-05 and Section 21 of RA 9165 on the conduct
of inventory.
As a final word, the Court reiterates that it is aware that, in some instances,
law enforcers resort to the practice of planting evidence to extract
information or even to harass civilians.41 Hence, the Court reaffirms the
long-standing rule that the presumption that regular duty was performed by
the police officers could not prevail over the constitutional presumption of
the innocence of the accused.42
WHEREFORE, in view of the foregoing, the Petition is hereby GRANTED.
The Decision dated October 27, 2016 and Resolution dated March 14, 2017
of the Court of Appeals in CA-G.R. CR No. 36706 are
hereby REVERSED and SET ASIDE. Accordingly, petitioner Perly Tuates y
Chico is ACQUITTED of the crime charged on the ground of reasonable
doubt. Let an entry of final judgment be issued immediately.
SO ORDERED.
Carpio, (Chairperson), J. Reyes, Jr., J., and Lazaro-Javier, JJ., concur.
Perlas-Bernabe, J., on leave.
