Aguirre suspends Manila prosecutor, names Duterte frat brod as OIC

Justice Secretary Vitaliano Aguirre II has suspended for 90 days Manila City Prosecutor Edward M. Togonon for not following his order to release three detainees arrested for drugs despite the dismissal of cases against them.

“He was suspended for not following the D.O. (Department Order) in not releasing three detainees despite the dismissal of the case against them,” Aguirre said in a text message Friday, adding that the suspension will be for 90 days.

He designated as officer-in-charge Atty. Alexander Ramos, currently the Witness Protection Program (WPP) Director and a fellow member of Lex Talionis Fraternity where both Aguirre and President Rodrigo Duterte are members.

On Jan. 4, 2017, Aguirre issued Department Circular No. 004 which provide that a respondent whose case for violation of the Comprehensive Dangerous Drugs even if it involves the maximum penalty of reclusion perpetua (20 years and 1 day to 40 years imprisonment) shall be immediately released from detention even if the case is pending for automatic review before the Department of Justice (DOJ).

Aguirre reversed the Department Circular (DC) No. 022 dated February 12, 2013 issued by former Justice Secretary Leila M. De Lima, with the subject “Guidelines on the Release of Respondents/Accused Pending Automatic Review of Dismissed Cases involving Republic Act No. 9165 (Comprehensive Dangerous Drugs Act).”

Under the said Circular, certain respondents when arrested shall remain in detention while their respective cases are under Automatic Review, despite dismissal of the preliminary investigation of cases against them.

Furthermore, DC No. 050 dated December 18, 2015 issued by then Sec. Alfredo Benjamin S. Caguioa amended the same in requiring that the respondent shall be immediately released from detention pending automatic review only if the case subject for the automatic review is not resolved within 30 days.

Aguirre said the two issuances made by De Lima and Caguioa are in violation of the people’s right to liberty. He thus issued, DC No. 004 dated January 4, 2017 which mandates that even with the automatic review, a respondent may be released from detention if initial probe orders the dismissal of case filed against him.

Incredible defenses

In some crimes, an accused may be exempted from criminal liability because of imbecility and his being prompted to act the way he did due to uncontrollable fear of an equal or greater injury. These cases of Cardo and Nardo explain the meaning of these exempting circumstances within the contemplation of the law (Article 12 of the Revised Penal Code).

One afternoon at about 1:15 pm, the accused Cardo, went inside the campus of a private school and approached Benjo, a 14-year-old high school student. He persuaded Benjo to go with him on the pretext that he would turn over the proceeds of the sale of a property to Benjo’s father. Cardo also persuaded Benjo to bring along his classmate, Kevin also 14 years old, so he will have a companion when they go home later. Kevin agreed as he and Benjo were best of friends in and out of school even if Benjo is the scion of a well to do family while Kevin is the son of a jeepney driver only.

The two boys were brought to a nipa hut in the middle of a fishpond to await a certain “Ka Berto,” another accused. Benjo and Kevin attempted to go home, but Cardo stopped them and told them that Ka Berto was already arriving and wanted them blindfolded with their feet tied. So Cardo tied their hands and feet with a wire rope. While the two protested, Cardo assured them that they will not be harmed.

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Later, the other accused Nardo came and checked if the two boys were securely tied after which Cardo played a tape demanding P3 million from Benjo’s parents in exchange for his release. Benjo was likewise made to record his own voice pleading his parents to pay the ransom demanded. Then Nardo carried Kevin to the river and kicked Benjo to go with them. At the river Cardo dragged Kevin by the neck towards the middle and left him to drown. After asking Nardo to look for the necklace of Kevin, they returned to the hut where Nardo stood guard over Benjo as Cardo went to sleep.

In the hut, Benjo managed to untie his feet and asked Nardo to remove the wire around his hands on the assurance that he would not escape and would just sleep. The following morning, when Cardo went to Benjo’s parents to deliver the tape recordings and while Nardo was busy cutting the grass near the river, Benjo escaped and proceeded to the house of Cardo where he called up his grandmother. Later he was fetched by his father and grandmother and they reported the kidnapping at the police station. Two days later, Kevin’s body was recovered at the river with both hands and feet still tied and his mouthed gagged.

After investigation, Cardo, Nardo and Ka Berto were charged with the crimes of kidnapping with murder and kidnapping for ransom. Only Cardo and Nardo were arrested and tried as “Ka Berto” remained at large. The lower court in a joint decision convicted them of both crimes charged and sentenced them to suffer the penalty of reclusion perpetua for each crime. Only Nardo appealed and insisted that he is an imbecile with a very low level of intelligence citing his act of cutting the grass when he should be guarding Benjo. He also averred that he merely acted under fear and duress as his co-accused Cardo poked a gun at him and threatened him with death if he will not follow his orders.

But the Supreme Court did not accept Nardo’s defense. According to the SC, imbecility is   a mental condition approaching that of insanity. An imbecile within the meaning of the Article 12 RPC, is one who must be completely deprived of reason or discernment and freedom of will at the time of committing the crime. He is one who, while advanced in age, has a mental development comparable to that of a child between two and seven years old. Nardo’s act of cutting grass rather than guarding his victim could hardly be indicative of imbecility. Rather, it may be considered as negligence but definitely not childishness or even that of one completely deprived of reason or discernment and freedom of the will.  In fact Nardo admitted on cross examination that he can tell what is right and what is wrong. So his feeblemindedness is not an exempting circumstance because he could distinguish between right and wrong.

Nardo’s claim that he was forced to do what he did on account of uncontrollable fear, duress or intimidation is belied by the fact that he had at least four chances to escape: (1) when Cardo brought Kevin to the middle of the river while he remained on the rice paddy; (2) when Cardo was sleeping in the nipa hut; (3) when Cardo asked him to look for the necklace of Kevin on the river bank; and when Cardo left him and Benjo to deliver the taped recorded ransom demand to Benjo’s family. By not availing of these chances to escape his allegation of fear and duress becomes incredible.

Nardo’s knowledge of what is right and wrong and his failure to escape shows that he also conspired with Cardo to commit the crime charged as can be deduced from his following acts: first, when he arrived, he immediately checked if the victims are securely tied; second when he carried Kevin to the river; and third when he kicked Benjo after ordering him to go to the river.

So Cardo and Nardo are guilty of kidnapping for ransom with respect to Benjo and should therefore be sentenced to reclusion perpetua. Considering however that Cardo and Nardo never intended to hold Kevin for ransom as he was the son of a jeepney driver, the crime committed by them against Kevin is only homicide. So their sentence should only be from 10 years and one day up to 18 years, 6 months and 1 day (People vs. Nunez and Cayetano, G.R. 112429-30, July 23, 1997).

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

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

SC reminds PNP anew: Follow rules on warrantless arrest

MANILA, Philippines (Philippines News Agency) — The Supreme Court (SC) reminded anew the Philippine National Police to comply with rules on warrantless arrest, particularly on drug suspects.

 

The court made the reiteration after it acquitted a drug convict when it found that his warrantless arrest and the search incidental to his arrest were “unreasonable and unlawful.”

 

In the 11-page decision penned by Justice Estela M. Perlas-Bernabe, the high court’s First Division granted the appeal of accused-appellant Gerrjan Manago to reverse and set aside the May 20, 2013 decision and Nov. 6, 2013 resolution of the Court of Appeals (CA).

 

The CA in the said decision affirmed the March 23, 2009 ruling of the Regional Trial Court (RTC) Branch 58 of Cebu City, finding Manago guilty beyond reasonable doubt of violating Section 11, Article II of RA 9165, the Comprehensive Dangerous Drugs Acts of 2002.

 

“In fine, Manago’s warrantless arrest, and the search incidental thereto, including that of his moving vehicle were all unreasonable and unlawful. In consequence, the shabu seized from him is rendered inadmissible in evidence pursuant to the exclusionary rule under Section 3 (2), Article III of the 1987 Constitution. Since the confiscated shabu is the very corpus delicti of the crime charged, Manago must necessarily be acquitted and exonerated from criminal liability,” the court held.

 

The court, however, said that one of the recognized exceptions to the needs of a warrant before a search may be effect is a search incidental to a lawful arrest. In this instance, the law requires that there first be a lawful arrest before a search can be made and “the process cannot be reversed.”

 

Under Section 5, Rule 113 of the Revised Rules of Criminal Procedure, the three instances when warrantless arrests may be lawfully effected are: (a) an arrest of a suspect in flagrante delicto (in the very act of); (b) an arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the perpetrator of a crime which had just been committed; and (c) an arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined during the pendency of his case or has escaped while being transferred from one confinement to another.

 

The court stressed that in warrantless arrests made pursuant to Sec. 5(b), “it is essential that the element of personal knowledge must be coupled with the element of immediacy; otherwise, the arrest may be nullified, and resultantly, the items yielded through the search incidental thereto will be rendered inadmissible in consonance with the exclusionary rule of the 1987 Constitution.”

 

The court held that while the element of personal knowledge under Sec. 5(b) was present, the police authorities, opting to conduct a “hot pursuit operation which — considering the lack of immediacy — unfortunately failed to meet the legal requirements therefor. Thus, there being no valid warrantless arrest under the “hot pursuit” doctrine, the CA erred in ruling that Manago was lawfully arrested.

 

“In view of the finding that there was no lawful arrest in this case, the CA likewise erred in ruling that the incidental search on Manago’s vehicle and body was valid. In fact, the said search was made even before he was arrested and thus, violated the cardinal rule on searches incidental to lawful arrests that there first be a lawful arrest before a search can be made,” the Court held.

 

The court underscored that “routine inspections do not give police officers carte blanche discretion to conduct warrantless searches in the absence of probable cause.”

 

Records reveal that in the evening of March 15, 2007, PO3 Antonio Din of the Philippine National Police (PNP) Mobile Patrol Group personally witnessed a robbery incident while he was waiting for his turn to have a haircut at Jonas Borces Beauty Parlor. After his brief shootout with the armed robbers, the latter fled using a motorcycle and a red Toyota Corolla. Through an investigation and verification by police authorities, they found out that the armed robbers were staying in Barangay Del Rio Pit-os; and traced the getaways vehicles to Manago. The next day, March 16, 2007, the police set up a checkpoint in Sitio Panagdait where the red Toyota Corolla being driven by Manago passed by and was intercepted by the police officers. The police then ordered Manago to disembark the car, and from there, proceeded to search the vehicle and the body of Manago, which yielded the plastic sachet containing shabu. Thereupon, they effected Manago’s arrest.

 

In this case, the police officers had already conducted a thorough investigation and verification proceedings, which yielded, among others: the identities of the robbery suspects; the place where they reside; and the ownership of the getaway vehicles used in the robbery. These pieces of information were already enough for said police officers to secure the necessary warrants to accost the robbery suspects. Consequently, there was no longer any exigent circumstance that would have justified the necessity of setting up a checkpoint for the purpose of searching the subject vehicle. Also, the checkpoint was arranged for the targeted arrest of Manago, who was already identified as the culprit of the robbery incident. In this regard, it cannot, therefore, be said that the checkpoint was meant to conduct a routinary and indiscriminate search of moving vehicles. Rather, it was used as a subterfuge to put into force the capture of the fleeing suspect.

 

In 2009, Manago was found by the Cebu City RTC guilty beyond reasonable doubt of possession of 0.3852 grams of shabu and sentenced him to suffer the penalty of imprisonment for a period of 12 years and one day, as minimum, to 15 years, as maximum, and to pay a P300,000 fine.

 

The case was elevated to the CA which affirmed Manago’s conviction, prompting the latter to further elevate the matter to the high court.

Supreme Court acquits convict found guilty of drug possession

THE SUPREME COURT (SC) has acquitted a convicted drug user, ruling his warrantless arrest and search as “unreasonable and unlawful.”

In an 11-page decision on Aug. 17, the First Division of the SC reversed the Court of Appeals’ (CA) May 20, 2013 decision affirming the March 23, 2009 decision of the Cebu City Regional Trial Court Branch 58 that found Gerrjan Manago as guilty beyond reasonable doubt for possession of 0.3852 grams of shabu.

The high court said the confiscated shabu should be rendered inadmissible in court as it was obtained through an unlawful search and seizure.

The case stemmed from a robbery-shootout on March 15, 2007 wherein armed robbers escaped in a motorcycle, as well as a red Toyota Corolla that was then traced to Mr. Manago.

The next day Mr. Manago, driving that vehicle, was stopped at a checkpoint in Sitio Panagdait, Cebu City, and told to step out of the car as police officers conducted a search that yielded the sachet of shabu.

The SC decision read in part: “In view of the finding that there was no lawful arrest in this case, the CA likewise erred in ruling that the incidental search on Manago’s vehicle and body was valid. In fact, the said search was made even before he was arrested and thus violated the cardinal rule on searches incidental to lawful arrests that there first be a lawful arrest before a search can be made.”

The Court said “routing inspections do not give police officers carte blanche (unconditional authority) to conduct warrantless searches in the absence of probable cause.”

“Since the confiscated shabu is very corpus delicti (concrete evidence) of the crime charged, Manago must necessarily be acquitted and exonerated from criminal liability,” the Court added.

The decision was penned by Justice Estela M. Perlas-Bernabe.

source:  Businessworld