HOWARD LESCANO Y CARREON @ “TISOY”, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

Lescano versus People of the Philippines

The Case

This is the appeal of Howard Lescano, known as Tisoy, against his conviction for the illegal sale of dangerous drugs under Section 5 of the Comprehensive Dangerous Drugs Act of 2002. The prosecution's story is a buy-bust operation in Olongapo City in which a poseur buyer supposedly handed over a marked one hundred peso bill and received a sachet of marijuana fruiting tops weighing one gram and four tenths of a gram. The case matters because the Supreme Court uses it to insist that law enforcers must not trifle with the legal requirement of preserving the integrity of the chain of custody of seized drugs, especially where only a minuscule amount of dangerous drugs is alleged to have been taken from the accused.

Procedural History

An Information for illegal sale of dangerous drugs was filed against Lescano in the Regional Trial Court of Olongapo City. Upon arraignment he entered a plea of not guilty, and trial followed. The trial court, in a decision rendered in September 2011, found him guilty beyond reasonable doubt, sentenced him to life imprisonment, and ordered him to pay a fine of five hundred thousand pesos, with the sachet forfeited in favor of the government. Lescano appealed to the Court of Appeals, which affirmed the conviction in a decision rendered in November 2013. The Court of Appeals denied his Motion for Reconsideration in a Resolution dated September 2014. Lescano then brought the matter to the Supreme Court by appeal, and the Court resolved it in January 2016.

Facts

On the sixth of July 2008, an informant approached the City Anti-Illegal Drug Special Operation Team of Olongapo City and reported drug pushing at the corner of Tulio and Tabacuhan Streets. The team monitored the area, relayed the results to its chief, and a buy-bust operation was planned. PO3 Hortencio Javier was designated as the poseur buyer, with PO1 Ferdinand Mataverde as immediate back-up and SPO1 Allan Delos Reyes as investigator. A one hundred peso bill bearing serial number CM283073 was marked with the initials HJ, and it was agreed that the poseur buyer would remove his cap to signal that the sale had been consummated.

On the eighth of July 2008, at about four forty in the afternoon, the poseur buyer and the informant arrived at the corner of Tulio and Tabacuhan Streets. The informant pointed to Lescano, who was standing alone. The informant introduced the poseur buyer, Lescano asked how much marijuana he was willing to buy, and the poseur buyer handed over the marked bill. Lescano then gave him a medium-sized plastic sachet supposedly containing marijuana. The poseur buyer gave the signal, PO1 Mataverde approached and introduced himself as a police officer, frisked Lescano, and recovered the buy-bust money. The poseur buyer marked the sachet with the initials HJ and turned it over to the investigator.

At the office, an inventory was allegedly conducted and photographs of the marked money and the sachet were taken. A Receipt of Evidence was prepared, and the sachet and Lescano's urine were submitted for laboratory examination. The sachet tested positive for marijuana, and his urine showed the presence of dangerous drugs. Lescano denied the charge. He testified that he was merely sitting and passing time on Tulio Street when the police arrived, that a search of his person yielded nothing, and that the officers told him, do not worry, tomorrow there will be. His neighbor Rogelio Jacobo corroborated that he saw Lescano being accosted by a police officer.

Issues

• Whether or not the guilt of Howard Lescano beyond reasonable doubt for violating Section 5 of the Comprehensive Dangerous Drugs Act of 2002 was established.
• Whether or not the prosecution was able to establish compliance with the requisites of Section 21 of the Comprehensive Dangerous Drugs Act of 2002.

Applicable Provisions

Section 21 of the Comprehensive Dangerous Drugs Act of 2002, as amended, governs the custody and disposition of confiscated, seized, and surrendered dangerous drugs. Its first paragraph provides:

Sec. 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:

This paragraph fixes the agency charged with custody and frames the manner of disposition that the apprehending team must follow.

Paragraph 1 of Section 21, as amended, sets out the physical inventory and photograph requirement:

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items 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, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.

This is the provision whose requirements the Court measures the buy-bust team against, and whose noncompliance it treats as fatal to the identity of the corpus delicti.

Paragraph 2 of Section 21 requires submission of the seized items to the forensic laboratory within twenty-four hours:

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;

This paragraph completes the chain by requiring prompt laboratory examination of the seized substance.

Ruling

On the first issue, the Court held that the conviction could not stand because the identity of the corpus delicti, the illicit drug itself, was not established with moral certainty. In actions involving the illegal sale of dangerous drugs, two elements must be proven: that the transaction or sale took place, and the presentation in court of the corpus delicti as evidence. The second element failed.

On the second issue, the Court held that the prosecution did not establish compliance with Section 21. Section 21, paragraph 1 requires two actions, physical inventory and photographing, done immediately after seizure and confiscation, and at the nearest police station or nearest office of the apprehending team in case of warrantless seizures. It also requires at least three persons to be present: the accused or the person from whom the items were seized, an elected public official, and a representative of the National Prosecution Service, with the accused's representative or counsel and a media representative as recognized alternatives. The Court found it glaring that, despite the claim of a carefully planned operation, the inventory was done neither in the presence of Lescano nor in the presence of his counsel or representative, and none of the other required persons was shown to be present. Marking alone does not suffice.

Marking of the seized drugs alone by the law enforcers is not enough to comply with the clear and unequivocal procedures prescribed in Section 21 of R.A. No. 9165.

The Court stressed that noncompliance with Section 21 is tantamount to failure to establish the identity of the corpus delicti, an essential element of the offense, and therefore engenders acquittal. It also held that the presumption of regularity in the performance of official duties cannot arise where the official act is irregular on its face, and that sweeping guarantees as to the identity and integrity of seized drugs will not secure a conviction.

Doctrine

In every prosecution for the illegal sale of dangerous drugs, the prosecution must prove the sale and must present the corpus delicti, the illicit drug itself, with moral certainty. Compliance with Section 21 of the Comprehensive Dangerous Drugs Act of 2002, as amended, is critical: the apprehending team must conduct a physical inventory and photograph the seized items immediately after seizure and confiscation, in the presence of the accused or his representative or counsel, an elected public official, and a representative of the National Prosecution Service or the media, who must sign the copies of the inventory. Noncompliance, absent justifiable grounds showing that the integrity and evidentiary value of the seized items were preserved, is tantamount to failure to establish the identity of the corpus delicti and warrants acquittal. Mere marking of the seized items does not amount to compliance, and the presumption of regularity in the performance of official duty cannot be invoked where the official act is irregular on its face.

Disposition

The Supreme Court granted the appeal, acquitted Howard Lescano of the illegal sale of dangerous drugs for failure of the prosecution to establish his guilt beyond reasonable doubt, and ordered his immediate release.

Remember This

The one line to memorize is that noncompliance with Section 21 of the Comprehensive Dangerous Drugs Act is failure to establish the corpus delicti, and failure to establish an element means acquittal. Examiners use this case to test the strict requirements of physical inventory and photographing in the presence of the required witnesses, and to test why the presumption of regularity cannot cure a flawed chain of custody.