Overdue process?

By: Artemio V. Panganiban / @inquirerdotnet

Philippine Daily Inquirer

No person shall be deprived of life, liberty or property without due process of law…” is the most basic right enshrined in the first section of our Constitution’s Bill of Rights. Deprivation is not necessarily unconstitutional. What is prohibited is deprivation without due process.

Illegal arrests and searches. Moreover, the second section of the Bill of Rights guarantees “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose.”

To deprive a person of this right—that is, to be able to arrest him/her, or to search his/her “body, houses, papers, and effects”—the arresting officer must first secure an arrest or search warrant from a judge.

In turn, to issue either or both warrants, the judge is required to personally determine “probable cause” by examining under oath the complainants (or the police officers) and the witnesses they may produce. The warrant must specify the place to be searched and the persons or things to be seized. It cannot be used to search any place or to seize any person or thing other than those specified therein.

My Oct. 6 column (“Dismal record in prosecuting drug cases”) explained the exceptions to the need for warrants, like those made in flagrante delicto and in “hot pursuit.”

Note that courts strictly construe these exceptions. Defects in the warrants, like where the judge did not personally examine the witnesses, or where the arresting officer did not have personal knowledge of the facts and depended merely on “surveillance operations,” make the arrest and/or search illegal.

Similarly, our Constitution grants suspects the so-called “Miranda rights” requiring the arresting officer to inform suspects of their rights to remain silent and to have competent and independent counsel; otherwise, the arrest and search would likewise be illegal.

Moreover, confessions extracted with “torture, force, violence, threat, intimidation, or any other means which vitiate the free will” would also be illegal.

In all these instances, the illegally obtained evidence, even if tending to prove guilt, would be inadmissible in evidence, and would thus result in the acquittal of the accused.

Libertarian pendulum. Why is the Constitution so protective of suspects and so strict on police officers? Because when it was crafted in 1987, the horrifying abuses during the martial law regime were still fresh. Our constitution drafters wanted iron-clad protection for the innocent, especially the poor and the marginalized.

However, the libertarian pendulum swung too much to the opposite direction, resulting in the timidity of the police, lest they be held liable administratively and criminally. The net result is the rise in criminality. Grafters, killers, rapists and drug lords misuse the liberality of the Constitution to evade liability for their crimes and misdeeds.

And even when police officers strictly observe constitutional rights, some prosecutors and judges, out of sheer ignorance, apathy, laziness, or corruption, fail the justice system. So, too, witnesses are bribed, lose their memory, or otherwise disappear. Many lawyers thrive in technicalities and delays, rather than in their sworn duty to do justice to everyone.

Extralegal solutions. The consequence is a general revulsion against democratic methods, overlooking that means are as important as ends. Due process is equated with costly suits, tiring delays, inexplicable technicalities, long-winded trials, interminable appeals, unwelcome acquittals and plain injustice.

In frustration, people tend to take matters into their own hands and turn to extralegal and extrajudicial shortcuts.

To solve this revulsion to “overdue process,” the police, the prosecutors, the lawyers and the judges will have to cooperate, think outside the box, moderate the pendulum swing and craft innovative ways to provide quality and speedy justice for all. There must be a way to safeguard our precious constitutional rights without the “over” in due process.

Comments to chiefjusticepanganiban@hotmail.com

Entrapment or instigation?

In catching a suspect, the police can validly resort to entrapment like in a buy bust operation. Sometimes however, the means used is no longer an entrapment but an instigation which may result in the acquittal of an accused. But when is there entrapment and when is there instigation? This case of Sheila explains the difference between the two methods.

Sheila is a resident of a Barangay in a Visayan City which is reputed to be its red light district. She is well known for pimping girls to customers. One of the girls who used to see her pimping girls is Daisy who is just 17 years old.

Daisy used to work as a house helper in another city nearby to help her father but later on transferred to the same city to look for her long time friend Ginny who is working in a disco club. She stayed with her cousin in the city then later on transferred to a boarding house until she finally located her friend Ginny. Upon Ginny’s invitation, Daisy also worked in said Club because she needed money in order to help her father. For a few weeks, Ginny provided customers to Daisy who was paid P200 to have sex with them plus an additional P500.00 as tip.

Later on, Ginny brought Daisy to the same barangay where Shiela resided telling her that there were more customers in that area. At that time a non-governmental organization (NGO) was conducting an operation to entrap persons in human trafficking with the help of the City Police. Thus a team of five police operatives was formed to assist the NGO. The team went to a motel and rented Rooms 12 and 13 which were adjacent to each other. Room 12 was designated for the transaction while Room 13 was the place where the other police operatives stayed. Then with PO1 Dario and PO1 Santos acting as decoys, pretending to be tour guides looking for girls and with marked money provided by the NGO, the team went to a street of the red light district where Sheila noticed them and called their attention by saying “Chicks mo dong” (Do you like girls, guys?).

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After a few minutes of conversation between Sheila and the two policemen who told her that the girls must be young because they have guests waiting at the hotel, Sheila told them to wait and she will get the girls. After the police decoys alerted their chief, Sheila returned with Daisy and another 17-year-old girl Lani. Sheila assured the policemen that the two girls were “good at sex” and told the policemen that their services would cost P500.00 each.

So PO1 Dario and Santos convinced Sheila to go with them at the motel and upon proceeding to Rm 24, gave her the marked money. As Sheila counted the money, the rest of the team proceeded to Rm 12, arrested Sheila and informed her of her constitutional rights. They confiscated the marked money as Daisy and Lani were brought to Rm 13 and placed in the custody of the NGO and the DSWD.

Sheila was charged with violation of R.A. 9208, Section 4 (a) qualified by Section 6 (a) otherwise known as the “Anti Trafficking in Persons Act of 2003” for hiring and/or recruiting the minors Daisy and Lani for purposes of prostitution and sexual exploitation by acting as their procurer for different customers for money, profit or any other consideration.”

At the trial Daisy and the police operatives testified reiterating the above events. For her part, Sheila denied being a pimp and asserted that she worked as a laundry woman and was only buying supper when she was stopped by two men on board a blue car who instigated her into committing the crime. In fact according to Sheila, Daisy admitted that she worked as a prostitute, so it was her decision to display herself to solicit customers.

But the Regional Trial Court (RTC) found her guilty beyond reasonable as charged and sentenced her to suffer imprisonment of twenty years and pay a fine of P1,000,000.00 This decision was affirmed by the Court of Appeals (CA) which even increased the penalty to life imprisonment and imposed an additional P150,000 moral damages.

On further appeal to the Supreme Court (SC), said decisions were affirmed even increasing the moral damages to P500,000 and imposing exemplary damages of P100,000.

The SC ruled that Shiela performed all the elements in the commission of trafficking in persons when she peddled Daisy and Lani and offered their services to the police decoys in exchange for money. The offense was also qualified because the trafficked persons were minors as they were below 18 years old. Even if the minor victim gives her consent, such consent is not given out of her own free will. The act of sexual intercourse need not have been consummated for the mere solicitation for sex and the handing over of the bust money of P1,000 already consummated the act.

There is no instigation by the police here because it was Shiela who commenced the transaction with PO1 Dario and Santos by calling their attention on whether they wanted girls for that evening, and when the officers responded, it was Shiela who told them to wait as she would fetch the girls. In instigation, the law officers conceive the commission of the crime and suggest to the accused who adopts the idea and carries it into execution. So there was a valid entrapment here the idea and the resolve to commit the crime comes from Shiela (People vs.Casio, G.R. 211465, December 3, 2014).

E-mail: attyjosesison@gmail.com

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) | Updated 

Dismal record in prosecuting drug cases

By: Artemio V. Panganiban / @inquirerdotnet

Philippine Daily Inquirer

Dismal is the record of past governments in prosecuting drug cases because the police failed to observe the constitutionally-mandated process in arresting the suspects and in obtaining the evidence.

Recent jurisprudence. The Supreme Court very recently issued two drug-related decisions, Sindac vs People (Oct. 3, 2016) and People vs Manago (Aug. 17, 2016), both penned by Justice Estela M. Perlas-Bernabe, acquitting the accused precisely because of the failure to observe the said process. As “the proverbial fruit of a poisonous tree,” illegally-obtained evidence cannot be used in court.

Usually, the evidence used in drug cases is the shabu or marijuana seized after a search of the body, personal effects, vehicle, or home of the suspect. Note, however, that under the Constitution, searches and seizures can be made only with a search warrant issued by a judge based on “probable cause.”

As one of the exceptions to this rule, a warrantless search may be made as an incident of a lawful arrest. The arrest should precede the search. The process cannot be reversed. Moreover, the evidence obtained in an unlawful search cannot justify the post facto arrest of the suspect.

Warrantless arrests. On the other hand, an arrest is lawful if made with an arrest warrant also issued by a judge and also on probable cause, or made under three exceptions allowed by the Rules of Court. 

Thus, warrantless arrests may be effected:

1) When the suspect is caught in flagrante delicto, that is, when the suspect executes an “overt act” indicating he/she “has just committed, is actually committing, or is attempting to commit a crime; and such overt act is done in the presence of or within the view of the arresting officer.” Here, the officer personally witnesses the commission of the crime. For instance, the officer sees with his very eyes the actual shooting of the victim by the suspect.

2) When done in “hot pursuit,” that is, when an offense had in fact just been committed, and the arresting officer had personal knowledge of facts indicating that the suspect had committed the offense. For instance, the officer sees the victim fall from a bullet wound without seeing who actually pulled the trigger; yet, he personally sees the suspect running away from the origin of the shot while holding a smoking gun. The officer can thus “pursue” and arrest the suspect without a warrant.

3) When the suspect is an escaped prisoner or detainee.

Q and A. Question: Suppose a suspect is arrested on the basis of reliable information gathered after a surveillance operation. After a bodily search, he was found to possess shabu. Can the evidence (shabu) be used to convict him of illegal possession of a prohibited drug?

Answer: No. According to the cited case of Sindac vs People, the arresting officer did not have personal knowledge of the facts. “Reliable information alone—even if it was the product of well-executed surveillance operations—is not sufficient to justify a warrantless arrest.” Since the evidence was illegally obtained, it is inadmissible in evidence. Thus, the Court acquitted the accused.

Question: Suppose an officer personally witnesses a robbery but fails to apprehend the suspect who flees in a car. Through an investigation and verification the next day, the officer traces the suspect riding the same car. Whereupon he intercepts the car, orders the suspect to disembark, searches the vehicle and finds a plastic sachet containing shabu. Can the shabu be used to convict the accused?

Answer: No. Per the cited case of People vs Manago, the investigation and verification yielded sufficient information that could have enabled the officer to secure a search warrant. Furthermore, the search was made before a lawful arrest was effected, thereby tainting the evidence (shabu) as illegally-obtained and inadmissible. Thus, the Court acquitted the accused.

Moral lesson: To improve the conviction rate, the police should study meticulously and follow strictly the constitutional process.

Comments to chiefjusticepanganiban@hotmail.com