PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PRIMO “PERRY” PALOMARES Y OCAMPO, ACCUSED-APPELLANT.

People versus Palomares

The Case

This is the People of the Philippines against Primo Palomares, known as Perry, an appeal from a conviction for the illegal sale of dangerous drugs. The accused was charged with selling methamphetamine hydrochloride, commonly called shabu, to a poseur-buyer of the Philippine Drug Enforcement Agency in a buy-bust operation. He was convicted by the trial court and appealed, raising two defenses: that he was instigated into committing the crime, and that the prosecution failed to prove the corpus delicti, the body of the crime, because the chain of custody of the drugs was unreliable. The case matters because it draws the classic line between entrapment, which is legal, and instigation, which is not, and because it explains when a lapse in the inventory and custody rules will not defeat a conviction.

Procedural History

The accused was arraigned before the Regional Trial Court of Naga City, Branch 27, and pleaded not guilty. After trial, the court rendered a judgment on the twenty-fifth of July, 2013, finding him guilty beyond reasonable doubt of illegal sale of shabu, sentencing him to life imprisonment and a fine of five hundred thousand pesos, and ordering the confiscation of the drug for turnover to the Philippine Drug Enforcement Agency. The accused appealed directly to the Supreme Court, assigning as errors the trial court's rejection of his defense of instigation and its finding of guilt despite the alleged failure to prove the corpus delicti and the alleged unreliability of the chain of custody.

Facts

The accused was on the watch list of the Philippine Drug Enforcement Agency as a suspected drug dealer, and surveillance confirmed his illegal dealings. On the twenty-seventh of September, 2011, the agency planned a buy-bust operation. Intelligence Officer 1 Vidal Bacolod was designated poseur-buyer, Intelligence Officer 1 Ken Villafuerte was back-up arresting officer, and the rest of the team served as perimeter security. Through a confidential informant, a deal was arranged for twenty-five thousand pesos worth of shabu, to be transacted at Zam's Apartelle.

At nine o'clock in the evening, the accused arrived at Room Number 5 and demanded to see the money first. After confirming the money was ready, he left and returned an hour later with the sachet of shabu. He handed the sachet to the poseur-buyer, who handed him the buy-bust money. Villafuerte then made a missed call to signal the team, and the officers rushed in, introduced themselves, and arrested the accused. The confiscated item was marked and photographed at the apartelle, and the team brought the accused to the police station, where an inventory was made and photographs were again taken. The specimen was delivered to the crime laboratory, and the chemistry report confirmed it tested positive for methamphetamine hydrochloride.

The defense gave a different account. The accused claimed that a PDEA asset named Mike asked him to buy shabu from a certain Rafao Domato and to bring Domato to the hotel, that the plan did not proceed as arranged, and that he was arrested after Mike pointed a gun at him. His wife testified that he cooperated with Mike so as not to incur the ire of the agency, since he already had a pending drug case. The trial court convicted him, and he appealed.

Issues

• Whether or not the trial court erred in not appreciating the defense of instigation raised by the accused.
• Whether or not the trial court erred in convicting the accused despite the alleged failure of the prosecution to prove the corpus delicti, considering the alleged unreliability of the chain of custody of the drugs.

Applicable Provisions

Section 5, Article II of Republic Act Number 9165, as quoted in the decision, provides:

Under Section 5, Article II of Republic Act No. 9165, the penalty of life imprisonment to death and a fine ranging from P500,000.00 to P1,000,000.00 shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy, regardless of the quantity and purity involved.

This is the crime charged and the source of the penalty affirmed on appeal.

Section 21 of the Implementing Rules and Regulations of Republic Act Number 9165, as quoted in the decision, provides:

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: (a) 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, 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; Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; 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 x x x.

This governs the custody and disposition of the seized drug and supplies the rule that non-compliance does not invalidate the seizure where integrity and evidentiary value are preserved.

Ruling

On the first issue, the Court held that there was entrapment, not instigation. Instigation is the means by which the accused is lured into the commission of the offense charged in order to prosecute him, while entrapment is the employment of ways and means for the purpose of trapping or capturing a lawbreaker. A buy-bust operation is a form of entrapment, legal and effective, provided constitutional and legal safeguards are observed. Applying the objective test, the Court examined the conduct of the officers and found the details of the transaction clearly shown: the initial contact through the informant, the offer to purchase, the demand to see the money, and the delivery of the drug in exchange for the buy-bust money. The accused was neither cajoled nor induced; he readily agreed and even demanded to see the money first. His watch-list status and the confirmed surveillance reinforced that the feigned offer was merely a ploy to entrap a person already predisposed.

On the second issue, the Court held that the chain of custody was unbroken. It stressed that non-compliance with Section 21 of the Implementing Rules does not render the arrest illegal or the seized items inadmissible, because what is imperative is the preservation of the integrity and evidentiary value of the seized items. Here the drug was marked and photographed at the apartelle, inventoried at the nearest police station with photographs taken, delivered to the crime laboratory, tested, resealed, and kept by the evidence custodian until presented in court. The Court also noted that the law does not require every person who came into contact with the drug to testify, and that the barangay chairman was presented only to prove the inventory, not the buy-bust operation. The penalty was found in order under Section 5.

Doctrine

A buy-bust operation is a form of entrapment, not instigation, and is lawful where the idea to commit the crime originates from the offender and the officers merely provide the opportunity to catch him. The courts apply the objective test, scrutinizing the conduct of the officers and requiring that the details of the transaction be clearly shown, from initial contact to consummation by delivery of the drug. The elements of illegal sale are the identity of the buyer and seller, the object and consideration, and the delivery of the thing sold and payment therefor, coupled with presentation in court of the corpus delicti. Non-compliance with the inventory and photograph requirements of Section 21 of the Implementing Rules does not invalidate the seizure or the arrest, so long as the integrity and evidentiary value of the seized items are preserved. The defenses of denial and frame-up are viewed with disfavor and must be overcome by clear and convincing evidence of ill motive, failing which the presumption of regularity in the performance of official duty prevails.

Disposition

The Supreme Court affirmed the judgment of conviction, upholding the sentence of life imprisonment, the fine of five hundred thousand pesos, and the confiscation of the drug.

Remember This

Memorize the line: a buy-bust operation is entrapment, not instigation, and a lapse in the inventory rules is not fatal if the integrity and evidentiary value of the drug are preserved. Examiners use this case to test the entrapment and instigation distinction and the chain of custody under Section 21.