Irregularity in Entrapment Operations in Drug Cases

An entrapment operation is a valid way of apprehending perpetrators of sale of illegal drugs. Upon the
consummation of the sale, the entrapment team is authorized to immediately arrest the seller of illegal drugs. The
case would fall under the category of “in flagrante delicto” arrests, which do not require the issuance of a warrant
of arrest. An “in flagrante delicto” arrest is one where the law enforcement officer witnesses that a crime has taken
place or is about to take place, based on his own personal knowledge.

However, notwithstanding the fact that the police officers have personally witnessed that a sale of illegal drugs
has taken place, a person apprehended through an entrapment operation can still be acquitted. This is
possible if he objects to the admissibility of evidence during trial, and the most important evidence in illegal
drugs cases is the confiscated drugs themselves. The Comprehensive Dangerous Drugs Law imposes a very
strict procedure in handling confiscated drugs as evidence.

The case of People v. Casabuena (G.R. No. 186455, November 19, 2014) is instructive. Sometime in 2004, a
group of police officers formed an entrapment team and assigned one agent as a poseur-buyer. The poseur-
buyer went to the target area, with the rest of the team positioned 15 meters from the place of sale of illegal
drugs. The poseur-buyer entered the seller’s house, and there conducted the sale. The accused was
apprehended, and the drugs were confiscated.

However, the Supreme Court acquitted the accused because of an irregularity in the entrapment operation.
Specifically, the police officers failed to undertake an inventory and to photograph the seize sachets of shabu
at the place where they were seized or at the police station. Furthermore, the police officers did not even
attempt to offer any justification why it failed to inventory and to photograph the seized items. The Supreme
Court states, “In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti
of the offense and its existence is vital to sustain a judgment of conviction beyond reasonable doubt. Proof
beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti.”

The Comprehensive Dangerous Drugs Law itself provides that 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.

The effect of non-compliance with the requirement to conduct an inventory and to photograph the evidence is
the non-admissibility of the confiscated drugs as evidence. The judge therefore cannot consider said evidence
in writing his decision. The net effect is the failure of sufficient evidence to convict. 

Buy-Bust Operations

One of the most common ways in which law enforcement agencies apprehend persons accused of illegal sale of
drugs is through buy-bust operations. A buy-bust operation is a form of entrapment, whereby a police agent
disguised as a buyer of illegal drugs undertakes a sales transaction with a seller. Suppose, however, that there is
an irregularity in the buy-bust operation, and illegal drugs are confiscated from an alleged seller, what are the
remedies and defenses of the accused seller?

To convict a person for the sale of illegal drugs under the Comprehensive Dangerous Drugs Law, the
prosecutor must prove the following: (a) the identities of the buyer and seller, object, and consideration; and
(b) the delivery of the thing sold and the payment for it. In short, the prosecutor must prove that the sale took
place, and that the accused was the seller.

There is one important requirement to convict the accused under this law: the prosecution must establish
and present the “corpus delicti” or “body of the crime”, which in this case is the confiscated drugs.
Concomitant to this requirement is the duty of the prosecution to establish the integrity and evidentiary value
of such seized items. Absent this requirement, there is no sufficiency of evidence to convict the accused
beyond reasonable doubt.

The case of People v. Sorin (G.R. No. 212635, March 25, 2015) is instructive. Here, the accused was acquitted
because of an irregularity in the buy-bust operations. Specifically, the apprehending officer who seized the
sachets from the accused Sorin during the buy-bust operation failed to mark the sachets and, instead, turned
them over unmarked to another police officer. The latter officer was the person who marked the sachets of
shabu, and who eventually took custody of the confiscated drugs and delivery to the PDEA.

According to the Supreme Court, the fact that the sachets of drugs were not marked for inventory in the
presence of the apprehending officer who confiscated the drugs is fatal to the cause of the prosecution. “The
Court cannot over-emphasize the significance of marking in illegal drugs cases. The marking of the evidence
serves to separate the marked evidence from the corpus of all other similar or related evidence from the time
they are seized from the accused until they are disposed of at the end of the criminal proceedings, thus,
preventing switching, planting, or contamination of evidence.”

The same case occurred in People v. Sabdula (G.R. No. 184758, April 21, 2014), where the accused was also
acquitted because of failure of the apprehending officer to mark the confiscated drugs in the buy-bust
operations. The Supreme Court noted that due to the procedural lapse in the first link of the chain of custody,
serious uncertainty hangs over the identification of the shabu that the prosecution introduced into evidence.

It is well-settled that in criminal prosecutions involving illegal drugs, the presentation of the drugs which
constitute the corpus delicti of the crime calls for the necessity of proving with moral certainty that they are
the same seized items. The lack of conclusive identification of the illegal drugs allegedly seized from the
accused strongly militates against a finding of guilt, as in this case. As reasonable doubt persists on the
identity of the drugs allegedly seized from the accused, the latter's acquittal should come as a matter of
course.

UPDATES ON PLEA BARGAINING IN DRUG CASES

 What is Plea Bargaining?

 The Supreme Court in Daan vs. Sandiganbayan, G.R. Nos. 163972-77; March 28, 2008 defined plea
bargaining in criminal cases as “a process whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval. It usually involves the
defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that for the graver charge.”                                           

 Plea Bargaining in layman’s terms

1. It is the disposition of criminal charges by agreement between the prosecution and the
accused.
2. The accused and the prosecutor in a criminal case work out a mutually satisfactory disposition
of the case subject to court approval.
3. It usually involves the accused pleading guilty to a lesser offense or to only one or some of the
counts of a multi-count charges in return for a lighter sentence than that for the graver charge.
4. It is encouraged because it leads to prompt and final disposition of most criminal cases at the
same time resulting to the conviction of the accused.

 When is plea bargaining made?

Ordinarily, plea bargaining is made during the pre-trial stage of the proceedings.

 Is plea bargaining authorized under our existing Rules?

Yes. Plea bargaining is authorized under Section 2, Rule 116 of the Rules of Court.

 Is plea bargaining allowed in drug cases?

Yes, in the landmark case of Salvador Estipona vs. Judge Lobrigo (En Banc), G.R. No. 226679,
August 15, 2017, the Supreme Court declared Sec. 23 of RA 9165 prohibiting plea bargaining in drug
cases to be unconstitutional.           

 Why is it that under Revised Guidelines for Continuous Trial of Criminal Cases, plea
bargaining in drug cases is not allowed?

The reason is that Sec. 23 of RA 9165 has yet to be declared unconstitutional that time because
Revised Guidelines for Continuous Trial of Criminal Cases was issued on April 25, 2017 or almost
four (4) months before the decision in Estipona case was rendered.

 After the Estipona case, what guidelines were issued on plea bargaining in drug cases?
1. The Office of the Court Administrator (OCA) issued OCA Circular 90-18, adopting the
Supreme Court En Banc Resolution dated April 10, 2018 or Adoption of the Plea Bargaining
Framework in Drug Cases.

        It sets the limits to be observed in plea bargaining in drug cases including the specific violations
subject of plea bargaining.

 
 1. The Department of Justice also issued DOJ Circular No. 27 on June 26, 2018 or
the Amended Guidelines on Plea Bargaining for RA 9165, to serve as an internal guideline
for the prosecutors to observe before they give their consent to proposed plea bargains.

           It offers stiffer penalties on plea bargains than that of OCA Circular 90-18.

 Is DOJ Circular No. 27 unconstitutional for being inconsistent with OCA Circular 90-18?

No. The Supreme Court in another recent landmark case of Nurullaje Sayre @ “Inol” vs. Judge
Xenos; (En Banc) G.R. Nos. 244413, 244415-16; February 18, 2020 ruled that DOJ Circular No. 27 is
not inconsistent with OCA Circular 90-18. It merely serves as an internal guideline for the prosecutors
to observe before they give their consent to the proposed plea bargains.

Since plea bargaining is a mutual agreement between parties, DOJ Circular No. 27 also serves as the
counter-proposal of the prosecutor to the offer of plea of guilty to a lesser offense by the accused.

 In plea bargaining, can the accused demand other parties to accept the plea to a lower
offense?

No. A plea bargain still requires mutual agreement of the parties and remains subject to the approval
of the court.

The acceptance of an offer to plead guilty to a lesser offense is not demandable by the accused as a
matter of right but is a matter addressed entirely to the sound discretion of the trial court.

 Who are the parties in plea bargaining?

Generally, the parties to a plea bargaining are:

1. The accused,
2. The private offended party; and
3. The prosecutor.

 What is the role of the PNP in plea bargaining?

The Revised Guidelines for Continuous Trial of Criminal Cases as stated in DIDM Investigative
Directive No. 2018-20 states that the arresting officer in “victimless crimes” shall be present during
plea bargaining to give his/her consent, with the conformity of the public prosecutor.

 What is DIDM Investigative Directive 2018-20 and what is its purpose?

It is the “Plea Bargaining of Victimless Crimes in Relation to Revised Guidelines for Continuous Trial
of Criminal Cases”.

It was issued after the Court in Estipona case declared Sec. 23 of RA 9165 as unconstitutional. The
purpose of this Investigative Directive is to set policy and guidelines that shall be observed by PNP
personnel in the plea bargaining of criminal cases involving victimless crimes.

 What does “victimless crime” mean?

         “Victimless crimes” are crimes which do not have any private offended party.
 

 In short, the consent of the arresting officer is only needed if there is no private
offended party?

          Yes.

 Who is an “arresting officer”?

        On the part of the PNP, as stated in the Investigative Directive 2018-20, the arresting officer is
the PNP personnel who executed and signed the Affidavit of Arrest.

 Before giving his/her consent in plea bargaining, what is the most important thing that
the arresting officer needs to do?

          The arresting officer must first secure a written clearance from his/her superior before giving
his/her consent in plea bargaining. Without the said written clearance the arresting officer cannot
validly give his consent in the plea bargaining.

 Who are the superiors authorized to give clearance to the arresting officer?

The following are the superiors authorized to give clearance:

1. Concerned Chief of Police/Station Commander; or

2. Provincial Officer/Chief for National Operational Support Units (NOSUs); or
3. SITG/SITF Commander if the case is handled by SITG/SITF.