DANGEROUS DRUG ACT OF 2002
(Republic Acts No. 9165)
DEFINITIONS OF TERMS
Chemical Diversion – the sale, distribution, supply or transport of legitimately imported, in-transit,
manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in
concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall
include packaging, repackaging, labeling, relabeling or concealment of such transaction through fraud,
destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud.
Controlled Delivery – The investigative technique of allowing an unlawful or suspect consignment of any
dangerous drug and/or controlled precursor and essential chemical, equipment or paraphernalia, or property
believed to be derived directly or indirectly from any offense, to pass into, through or out of the country under
the supervision of any unauthorized officer, with a view to gathering evidence to identify any person involved
in any dangerous drug related offense, or to facilitate prosecution of that offense.
Controlled Precursor and Essential Chemicals – Includes those listed in Tables I and II of the 1988 UN
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the
attached annex, which is an integral part of this Act.
Drug Dependence – As based on the World Health Organization definition, it is a cluster of physiological,
behavioral and cognitive phenomena of variable intensity, in which the use of psychoactive drug takes on a
high priority thereby involving, among others, a strong desire or a sense of compulsion to take the substance
and the difficulties in controlling substance-taking behavior in terms of its onset, termination, or levels of use.
Drug Syndicate – Any organized group of two (2) or more persons forming or joining together with the
intention of committing any offense prescribed under this Act.
Illegal Trafficking – The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale,
trading, transportation, distribution, importation, exportation, and possession of any dangerous drug and/or
controlled precursor and essential chemical.
Protector/Coddler – Any person who knowingly and willfully consents to the unlawful acts provided for in this
Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape
of any person he/she knows, or has reasonable ground to believe on or suspects, has violated the provision
of this Act in order to prevent the arrest, prosecution and conviction of the violator.
Pusher – Any person who sells, trades, administers, dispenses, delivers, or gives away to another, on any
terms whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker
in any of such transaction, in violation of this Act.
Planting of evidence – the willful act by any person of maliciously and surreptitiously inserting, placing,
adding or attaching directly or indirectly, through any overt or covert act whatever quantity of any dangerous
drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate
vicinity of an innocent individual for the purpose of implicating, incriminating, or imputing the commission of
any violation of this Act.
What are the significant Provisions in R.A. 6425
that have been changed?
1. Under this Act there is no more distinction between prohibited drug and regulated drugs and/or controlled
precursors and essential chemicals enumerated in Tables I and II of the 1988 UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances.
2. The penalties provided by R.A. 7659 was changed , adopting partially the penalties in R.A. 6425.
3. In planting evidence any person now maybe held liable. Before, only law enforcement agents.
4. the provisions of the Revised Penal Code have no suppletory effect except for minors who may be
sentenced to reclusion perpatua.
What are the new kinds of drugs
that are included in R.A. 9165?
Methylenedioxymethamphetamine (MDMA) or commonly known as “Ecstasy”, or its any other name
which refers to the drugs having such chemical composition, including any of its isomers or derivatives in any
form. Paramethoxyamphetamine (PMA), Trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD),
gamma hydroxybutyrate (GHB) and those similarly designed or newly introduced drugs and their derivatives,
without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirement, as
determined and promulgated by the Board in accordance to Section 93, Art XI of this Act of R.A. 9165.
ACTS PUNISHABLE UNDER THE LAW
Punishable Act
Importation of dangerous drugs
Importation of controlled precursor and essential chemical
Act/s A and/or B through the use of a diplomatic passport
Penalty
Life imprisonment to death + Fine of P 500,000 to P
10,000,000
Imprisonment of 12 to 20 years + Fine of P 100,000 to P
500,000
Maximum penalty +Death + Fine of P 10,000,000
As “financier” of acts A and/or B
Maximum penalty +Death + Fine of P 10,000,000
As“protector/coddler”of acts A and/or B
Imprisonment of 12 to 20 years + Fine of P 100,000 to P
500,000
Sale, trading, administration, dispensation, delivery,
distribution and transportation of dangerous drugs
Life imprisonment to death +Fine of P500,000 to P 10,000,000
Sale, trading, administration, dispensation, delivery,
distribution and transportation of controlled precursor and
essential chemical
Imprisonment of 12 to 20 years+ Fine of P 100,00o to P
500,000
If act/s A and/or B transpires within 100 meters from school
Maximum penalty+Death + Fine of P 10,000,000
If act/s A and/or B employed minors or the mentally
incapacitated as runners, couriers, and messengers
Maximum penalty+Death + Fine of P 10,000,000
If the victim of act/s A and/or B is a minor or mentally
incapacitated
Maximum penalty+Death + Fine of P 10,000,000
If A and/or B in question is the proximate cause of death of a Maximum penalty+Death + Fine of P 10,000,000
victim
As “financier” of acts A and/or B
Maximum penalty +Death + Fine of P 10,000,000
As “protector/coddler” of acts A and/or B
Imprisonment of 12 to 20 years+ Fine of P 100,000 to 500,000
Maintenance of a den, dive or resort where any
dangerous drug is used or sold
Life imprisonment to death+ Fine of P 500,000 to P
10,000,000
Maintenance of a den, dive or resort where any controlled
precursor and essential chemical is used or sold
Imprisonment of 12 to 20 years + Fine of P 100,000 to
If victim of act/s A and/or B is a minor
Maximum penalty Death + Fine of P 10,000,000
If usage of A and/or B in the above den, dive or resort is the
proximate cause of death of a victim
Death+ Fine of P 1,000,000 to P 15,000,000
If owner of den, dive or resort is a third party
As “financier of acts A and/or B
As “protector/coddler” of act/s A
and/or B
P 500,000
Confiscation of property in favor of government
Maximum penalty+Death + Fine of P 10,000,000
Imprisonment of 12 to 20 years + Fine of P 100,000 to P
500,000
Employees and/or knowing visitors of a den, dive, or
resort
Imprisonment of 12 to 20 years + Fine of P 100,000 to P
500,000
Manufacture of dangerous drugs
Life imprisonment to death
Fine of P 500,000 to 10,000,000
Manufacture of controlled precursors and essential
chemicals
Imprisonment of 12 to 20 years
Fine of P 100,000 to P 500,000
The presence of any controlled precursor and essential
chemical or laboratory equipment in the clandestine
laboratory is a prima facie proof of manufacture of any
dangerous drug.
Aggravating circumstances:
If any phase of the manufacturing process was:
1. Conducted in the presence or with the help of
minor/s
2. Established or undertaken within 100 meters of a
residential, business, church or school premises.
3. Laboratory was secured or protected with booby
traps.
4. Laboratory was concealed with legitimate business
operations.
5. The employment of a practitioner, chemical
engineer, public official or foreigner
As financier of the manufacture of dangerous drugs and/or
its controlled precursors and essential chemicals
Maximum penalty+Death + Fine of P 10,000,000
As protector/coddler of the manufacture of dangerous drugs
and/or its controlled precursors and essential chemicals
Imprisonment of 12 to 20 years + Fine of P 100,000 to P
500,000
Illegal chemical diversion of controlled precursors and
essential chemicals
Imprisonment of 12 to 30 years
+ Fine of P 100,000 to P 500,000
Manufacture or delivery of equipment, instrument,
Imprisonment of 12 to 20 years
apparatus, and other paraphernalia for dangerous drugs + Fine of P 100,000 to P 500,000
and/or controlled precursors and essential chemicals
If said manufacturer or delivery of equipment instrument,
apparatus or paraphernalia is intended for injection,
ingestion, inhalation or the introduction into the human body
of a dangerous drug
Imprisonment of 6 months to 4 years + Fine of P 10,000 to P
50,000
Use of a minor or mentally incapacitated individuals to
deliver such equipment, instrument, apparatus, and other
paraphernalia
Maximum penalty + 20 years imprisonment
+ Fine of P 500,000.00
Possession of dangerous drugs
A. 10 grams or more of opium
10 grams or more of morphine
10 grams or more of heroin
10 grams or more of cocaine or cocaine hydrochloride
50 grams or more of methamphetamine hydrochloride or
shabu
10 grams or more of marijuana resin or marijuana resin oil
500 grams or more of marijuana
10 grams or more of other dangerous drugs such as, but not
limited to methylenedioxymethamphetamine
(MMDA) or ecstacy, paramethoxyampetamine
(PMA), trimethoxyamphetamine (TMA), lysergic
acid diethylamine (LSD), gamma hydroxybutyrate
(GHB), and other similarly designed or newly
introdced drugs and their derivatives
Life imprisonment to death
Fine of P 500,000 to P 10,000,000
B. 10 grams or more but less than 50 grams of shabu
Life imprisonement
C. 5 grams or more but less than 10 grams of:
Fine of P 400,000 to P 500,000
1. opium
2. morphine
20 years of life imprisonment
3. cocaine or cocaine
Fine of P 400,000 to P 500,000
4. hydrochloride
5. marijuana resin or marijuana resin oil
6. shabu
7. other dangerous drugs— ecstacy, PMA, TMA, LSD,
GHB;
Or 300 grams or more but less than 500 grams of marijuana
Less than 5 grams of
Imprisonment of 12 to 20 years
1. opium
Fine of P 300,000 to P 400,000
2. morphine
3. cocaine or cocaine
Imprisonment of 12 to 20 years
4. hydrochloride
+ Fine of P 300,000 to P 400,000
5. marijuana resin or marijuana resin oil
6. shabu
7. other dangerous drugs— ecstacy, PMA,
8. TMA, LSD, GHB;or less than 300 grams of
marijuana
Possession of equipment, instrument, apparatus, and
other paraphernalia for dangerous drugs
Imprisonment of 6 months to 4 years + Fine of 10,000 to
50,000
Such possession shall be prima facie evidence that the
possessor has used a dangerous drug in violation of section
15 on Drug Use.
Possession of dangerous drugs during parties, social
gatherings, or meetings
Maximum penalty of section 11 on Possession of Dangerous
Drugs + death + P 10,000,000
Possession of equipment, instrument, apparatus and
Maximum Penalty of Section 12 on Possession of Equipment,
other paraphernalia for dangerous drugs during parties, etc. for Dangerous Drugs
social gatherings, or meetings
+ 4 years Imprisonment + P 50,000 fine
Use of dangerous drugs
First offense, after a confirmatory test
Second offense
Cultivation or culture of plants classified as dangerous
drugs or are sources thereof
As financier of such cultivation
As protector/coddler of such cultivation
Maintenance and Keeping of Original Records of
Transactions on Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals
Minimum of 6 months rehabilitation in a government center
Imprisonment of 6 to 12 years
+ Fine of P 50,000 to P 200,000
Life imprisonment to death
+ Fine of P 500,000 to P 10,000,000
The land or portions thereof and/or greenhouses on which any
of said plants is cultivated shall be confiscated and escheated
in favor of the state.
Maximum penalty
death + Fine of P 10,000,000
Imprisonment of 12 to 20 years
+ Fine of 100,000 to P 500,000
1 to 6 years + Fine of 10,000 to 50,000
revocation of the license to practice his/her profession, in case
of a practitioner, or of the business, in case of a manufacturer,
seller, importer, distributor, dealer or retailer.
Unnecessary Prescription of Dangerous Drugs
12 to 20 years + Fine of 100,000 to 500,000
revocation of his/her license to practice
Unlawful Prescription of Dangerous Drugs
life imprisonment to death + Fine 500,000 to 10,000,000
CRIMINAL LIABILITY OF ALIENS, OFFICERS
OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR OTHER JURIDIUCAL ENTITIES
1. In addition to the penalties prescribed in the unlawful act committed, any alien who violates such
provisions of the Law, after service of sentences, shall be deported immediately without further
proceedings, unless the penalty is death.
2. In case the violation of the Law is committed by a partnership, corporation, association or any juridical
entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to
or knowingly tolerates such violation shall be held criminally liable as co-principal.
3. The penalty provided for the offense under the Law shall be imposed upon the partner, president,
director, manager, trustee, estate administrator, or officer who knowingly authorizes, tolerates, or
consents to the use of a vehicle, vessel, aircraft, equipment or other facility as an instrument in the
importation, sale, trading, administration, dispensation, delivery, distribution, transportation, or
manufacture of dangerous drugs, or chemical diversion, if such vehicle, aircraft, equipment or other
instrument is owned by or under the control or supervision of the partnership, corporation, association
or juridical entity to which they are affiliated.
CRIMINAL LIABLITY OF PUBLIC OFFICERS OR EMPLOYEES
1. Any public officer or employee who (1) misappropriates, (2) misapplies or (3) fails to account for
confiscated, seized or surrendered drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or
properties obtained from the unlawful acts punished under the Law shall be penalized with life
imprisonment to death and a fine ranging fromP500,000.00 to P10,000,000.00 and with perpetual
disqualification from any public office (Sec.27).
2. Any government official or employee found guilty of the unlawful acts punished under the Law shall be
imposed the maximum penalties provided for the offense and shall be absolutely perpetually
disqualified from holding any public office. (Sec. 28).
CRIMINAL LIABILITY OF ELECTIVE LOCAL OR NATIONAL OFFICIALS WHO BENEFITS FROM DRUG
TRAFFICKING – whether or not he know that it came from drugs, but the one who gave must be convicted first
by final judgment.
1.
Any elective local or national official found to have (1) benefited from the proceeds of the
trafficking of dangerous drugs as prescribed in the Law, or has (2) received any financial or material contributions
or donations from natural or juridical persons found guilty of trafficking dangerous drug as prescribed in the law,
shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the
government, its divisions, subdivisions, and intermediaries, including government-owned or controlled
corporations (\sec.27)
CRIMINALLIABILITY OF PRIVATE INDIVIDUAL
2.
Any person found guilty of “planting” any dangerous drug and/or controlled precursor and essential
chemical, regardless of quantity and purity, shall be punished with death. (Sec. 29).
3.
Any person violating any regulation issued by the Dangerous Drug Board shall be punished with
imprisonment ranging from 6 months and 1 day to 4 years and a fine ranging from P10,000.00 to P50,000.00 in
addition to the administrative sanction which may be imposed by the Board (Sec. 32)
CRIMINAL LIABILITY FOR
PLANTING OF EVIDENCE
Any person who is found guilty of planting nay dangerous drug and/ or controlled precursor and
essential chemicals, regardless of quantity and purity, shall suffer the penalty of death. (Sec. 29). Previosly, only
law enforcement agent maybe held liable (R.A. 7659).
ACCESORY PENALTIES
Any person convicted under this Law (R.A.9165) shall be disqualified to exercise his/her civil rights such
as, but not limited to, the right of parental authority or guardianship, either as to the person or property of any
ward, the rights to dispose of such property by any act or any conveyance inter vivos, and political rights such as
but not limited to, the right to vote and be voted for. Such rights shall also be suspended during the pendency of
an appeal from such conviction (Sec.35)
AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES
1.) If the importation or bringing into the Philippines of any dangerous drugs and/or controlled precursor
and essential chemicals was done through the use of diplomatic passport, diplomatic facilities or any
other means involving his/her official status intended to facilitate the unlawful entry of the same
2.) The sale trading, administration, dispensation, delivery, distribution or transportation of any
dangerous drug and/or controlled precursor and essential chemical transpired within one hundred (100)
meters from the school
3.)
The drug pusher use minors or mentally incapacitated individuals as runners,
couriers and messenger, or in any other capacity directly connected to the dangerous drug and/or
controlled precursor and essential chemical trade.
4.) The victim of the offense is a minor or mentally incapacitated individual, or should a dangerous drug
and/or controlled precursor and essential chemicals involved `in any offense be the proximate cause of
death of a victim.
5.) In case the clandestine laboratory is undertaken or established under the following circumstances:
•
•
•
•
•
Any phase of the manufacturing process was conducted in the presence or with the help of minor/s
Any phase of manufacturing process was established or undertaken within one hundred (100)
meters of a residential, business, church or school premises.
Any clandestine laboratory was secured or protected with booby traps.
Any clandestine laboratory was concealed with legitimate business operations.
Any employment of a practitioner, chemical engineer, public official or foreigner.
6.) In case the person uses a minor or a mentally incapacitated individual to deliver equipment,
instrument, apparatus and other paraphernalia use for dangerous drugs.
7.) Any person found possessing any dangerous drug during a party, or a social gathering or meeting,
or in the proximate company of at least two (2) person.
8.) Possession or having under his/her control any equipment, instrument, apparatus and other
paraphernalia fit of intended for smoking, consuming, administering, injecting, ingesting or introducing
any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate
company of at least two (2) person
WHAT ARE THE PRIVILEGE NOT
AVAILABLE TO VIOLATOR OF THIS ACT?
1.) Any person charged under any provision of this Act regardless of the imposable penalty shall not
be allowed to avail of the provision on plea-bargaining.
2.) Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty
imposed by the Court, cannot avail of the privilege granted by the Probation Law of P.D. No. 968,
as amended, except minors who are first-time offenders.
Note:- Pendency of appeal suspend the right of the accused
- Rights to Self-incrimination do not refer to giving blood.
IMMUNITY FROM PROSECUTION
AND PUNISHMENT
Immunity from Prosecution and punishment – Notwithstanding the provision of Section 17, Rule 119
of the Revised Rules of Criminal Procedure and the provisions of Republic Act No. 6981 or the Witness
Protection, Security and Benefits Act of 1991, any person who has violated Sections 7,11, 12, 14, 15 and
19, Article II of this Act, who voluntarily gives information about any violation of Section 4, 5, 6, 8, 13 and
16, Article II of this Act as well as any violation of the offenses mentioned if committed by drug syndicate,
or of any information leading to the whereabouts, identities and arrest of all or any of the members
thereof; and who willingly testifies against such persons as described above, shall be exempted from the
prosecution or punishment for the offense with reference to which his/her information of testimony in bar
of such prosecution; Provided, that the following condition concur:
1.) The information and testimony are necessary for the conviction of the person
described above;
2.) Such information are not yet in the possession of the State;
3.) Such information and testimony can be corroborated on its material points;
4.) The informant or witness has not been previously convicted of a crime involving moral
turpitude, except when there is no other direct evidence available for the State other
than the information and testimony of said informant or witness; and
5.) The informant or witness shall strictly and faithfully comply without delay, any
condition or undertaking, reduced into writing, lawfully imposed by the State as further
consideration for the grant of immunity from prosecution and punishment.
Provided, further, That this immunity may be enjoyed by such informant or witness who does not
appear to be most guilty for the offense with reference to which his/her information or testimony
were given. Provide, finally, that there is no direct evidence available for the State except for the
information and testimony of the said informant or witness.
TERMINATION OF THE
GRANT OF IMMUNITY
The immunity above-granted shall not attach should it turn out subsequently that the
information and/or testimony is false, malicious, or made only for the purpose of harassing, molesting or in
any way prejudicing the persons described in Section 33 against whom such information or testimony is
directed. In such case, the informant or witness shall be subject to prosecution and the enjoyment of all
rights and benefits previously accorded him under the Law or any other law, decree or order shall be
deemed terminated.
In case the informant or witness under the Law fails or refuse to testify without just cause,
and when lawfully obliges to do so, or should he/she violate any condition accompanying such immunity as
provided above, his/her immunity shall be removed and he/she shall be likewise be subjected to contempt
and/or criminal prosecution, as the case may be and the enjoyment of all rights and benefits previously
accorded him under the Law or in any other law, decree or order shall be deemed terminated. (Sec 34.)
In case the informant or witness referred to under the Law falls under the applicability of
Section 34, such individual cannot avail of the provision under Article VIII of the Law.
PERSON/S WHO ARE SUBJECT
TO THE MANDATORY DRUG TESTING
a.) Applicants for driver’s license – no driver’s license shall be issued or renewed to nay person unless
he/she presents a certification that he/she has undergone a mandatory drug test and indicating
thereon that he/she is free from the use of dangerous drugs.
b.) Applicants for firearm’s license and permit to carry firearms outside of residence. – All applicants for
firearms license and permit to carry firearms outside of residence shall undergo a mandatory drug
test to ensure that they are free from the use of dangerous drugs; Provided, That all persons who by
the nature of their profession carry firearms shall undergo drug testing;
c.) Officers and employees of public and private offices. – Officers and employees of public and private
offices, whether domestic or overseas, shall be subjected to undergo a random drug test as
contained in the company’s work unless and regulation, which shall be borne by the employer, for
purposes of reducing the risk in the workplace. Any officer or employee found positive for the sue of
dangerous drug shall be dealt with administratively which shall be a ground for suspension or
termination, subject to the provision Article 282 of the Labor Code and pertinent provisions of the
Civil Service Law.
d.) Officers and members of the military, police and other law enforcement agencies. – Officers and
members of the military, police and other law enforcement agencies shall undergo an annual
mandatory drug test.
e.) All persons charged before the prosecutor’s office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall have undergo a
mandatory drug test.
f.) All candidates for public office whether appointed or elected both in the national or local government
shall undergo a mandatory drug test.
CONFIDENTIALITY OF RECORDS UNDER
THE COMPULSARY SUBMISSION PROGRAM
The records of a drug dependent who was rehabilitated and discharged from the Center under the
compulsory submission program, or who was charged for violation of Section 15 of this Act, shall be covered
by Section 60 of this Act (R.A. 9165). However, the record of a drug dependant who was not rehabilitated, or
who escaped but did not surrender himself/herself within the prescribed period, shall be forwarded to the
court and their use shall be determined by the court, taking into consideration public interest and the welfare
of the drug dependant (Sec. 64)
DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE OF A FIRSTTIME MINOR OFFENDER
If the accused first time minor offender under suspended sentence complies with the applicable rules
and regulation of the Board, including confinement in a Center, the court, upon a favorable recommendation
of the Board for a final discharge of the accused, shall discharge the accused and dismiss all proceedings.
Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge
all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an
order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she
shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her
failure to acknowledge the case or recite any fact related therto in response to any inquiry madeof him for
any purpose (Sec. 67)
THE DANGEROUS DRUGS BOARD AND
PHILIPPINE DRUG ENFORCEMENT AGENCY
The Dangerous Drug Board
A. Function
The Dangerous Drug Board shall be the policy-making and strategy formulating body in the
planning and formulation of policies and programs on drug prevention and control. (Sec. 77)
B. Composition
Under R.A. 6424 as amended, the Dangerous Drug board was composed of seven ex officio
members as follows: (a) The Minister of Health or his representative; (b) the Minister of Justice or his
representative; (c) The Minister of National Defense or his representative; (d) The Minister of
Education and Culture or his representative; (e) The Minister of Finance or his representative; (f) The
Minister of Social Service and Development or his representative; and (g) The Minister of Local
Government or his representative (Sec. 35 Art. 8, R.A. 6424)
The Minister of Health shall be the Chairman of the Board and the Director of the National
Bureau of Investigation shall be the permanent consultant of the Board.
Under Section 78 of R.A. 9165, the membership of the Dangerous Drugs Board was
expanded to seventeen (17) members, three (3) of which are permanent members, twelve (12) shall
be in ex officio capacity, and the remaining two (2) shall be regular members.
The three (3) permanent members, who shall possess At least seven-year training and
experience in the field of dangerous drugs and in any of the following fields: in law, medicine,
criminology, psychology or social work, shall be appointed by the President of the Philippines. The
President shall designate a Chairman, who shall have the rank of a secretary from among the three
(3) permanent members who shall serve for six (6) years. Of the two (2) other members, who shall
have the rank of undersecretary, one (1) shall serve for four (4) and the other for two (2) years.
Thereafter, the person appointed to succeed such members shall hold office for a term of six (6) years
and until their successors shall have been duly appointed and qualified.
The other twelve (12) members who shall be ex officio members of the Board are the
following: (1) Secretary of the Department of Justice or his/her representative; (2) Secretary of the
Department of Health or his/her representative; (3) Secretary of the Department of National Defense
or his/her representative; (4) Secretary of the Department of Finance or his/her representative; (5)
Secretary of the Department of Labor and Employment or his/her representative; (6) Secretary of the
Department of Interior and Local Government or his/her representative; (7) Secretary of the
Department of Social Welfare and Development or his/her representative; (8) Secretary of the
Department of Foreign Affairs or his/her representative; (9) Secretary of the Department of Education
or his/her representative; (10) Chairman of the Commission of Higher Education or his/her
representative; (11) Chairman of the National Youth Commission; and (12) Director General of the
Philippine Drug Enforcement Agency.
Cabinet secretaries who are members of the Board may designate their duly authorized and
permanent representatives whose rank shall in no case be lower than undersecretary.
The two (2) regular members shall be as follows: (a) The President of the Integrated Bar of
the Philippines; and (b) The chairman or president of a non- chairman or president of a non- chairman
or president of a non-government organization involved in dangerous drug campaign to be appointed
by the President of the Philippines.
The Philippine Drug Enforcement Agency (PDEA)
A.
Functions
Carry out the provision of the Dangerous Drug act of 2002. The Agency shall served as the
implementing arm of the Dangerous Drug Board, and shall be responsible for the efficient and
effective law enforcement of all provisions of any dangerous drug and/or controlled precursor and
essential chemicals as provided for in the Law. (Sec. 82). The existing Secretariat of the National Drug
Law Enforcement and Prevention Coordinating Center as created by Executive Order No. 61 is
hereby modified and absorbed by the PDEA (Sec. 83, R.A. 9165)
B.) Powers and Duties
a.)
b.)
Implement or cause the efficient and effective implementation of the national drug control
strategy formulated by the Board thereby carrying out a national drug campaign program which shall
include drug law enforcement, control and prevention campaign with the assistance of concerned
government agencies;
Undertake the enforcement of the provision of article II of this Act relative to the unlawful acts
and penalties involving any dangerous drug and/or controlled precursor and essential chemical and
investigate all violators and other matters involved in the commission of any crime relative to the use,
abuse or trafficking of any dangerous drug and/or controlled precursor and essential chemicals as
provided for in this Act and the provisions of Presidential Decree No. 1619;
c.)
Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of
investigation involving violation of this Act;
d.)
Arrest and apprehend as well as search all violators and seize or confiscate, the effects or
proceeds of the crime as provided by law and take custody thereof, for this purpose the prosecutors
and enforcement agents are authorized to possess firearms, in accordance with the existing laws;
e.)
Take charge and have custody of all dangerous drugs and/or controlled precursors and
essential chemicals seized, confiscated or surrendered to any national, provincial or local law
enforcement agency; if no longer needed for purposes of evidence in court.
f.)
Establish forensic laboratories in each PNP office in every province and city in order to
facilitate action on seized or confiscated drugs; thereby hastening its destruction without delay;
g.)
Recommend to the DOJ the forfeiture of properties and other assets of persons and/or
corporations found to be violating the provisions of this Act and in accordance with the pertinent
provisions of the Anti-Money Laundering Act of 2002.
h.)
Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of
laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled
substance, and assist, support and coordinate with other government agencies for the proper and
effective prosecution of the same;
i.)
Monitor and if warranted by circumstances, in coordination with the Philippine Postal Office
and the Bureau of Customs, inspect all air cargo packages, parcels and mails in the central post office,
which appear from the packages and address itself to be a possible importation of dangerous drugs
and/or controlled precursors and essential chemicals, through on-line or cyber shops via the internet or
cyberspace;
j.)
Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous
drugs may be extracted;
k.)
Initiate and undertake the formation of a nationwide organization which shall coordinate and
supervise all activities against drug abuse in every province, city, municipality and barangay with active
and direct participation of all such local government units and non-governmental organizations,
including the citizenry, subject to the provisions of previously formulated programs of action against
dangerous drugs;
l.)
Establish and maintain a national drug intelligence system in cooperation with law enforcement
agencies, other government agencies/offices and local government units that will assist in its
apprehension of big time drug lords;
m.)
Established and maintain close coordination, cooperation and linkages with international drug
control and administration agencies and organization and implement the applicable provisions of
international conventions and agreement related to dangerous drugs to which the Philippines is a
signatory;
n.)
Create and maintain an efficient special enforcement unit to conduct an investigation, file
charges and transmit evidence to the proper court, wherein members of the said unit shall possess
suitable and adequate firearms for their protection in connection with the performance of their duties;
Provided, That no previous special permit for such possession shall be required;
o.)
Require all government and private hospitals, clinics, doctors, dentists and other practitioners
to submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled
precursors and essential chemicals which they have attended to for data and information purposes;
p.)
Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and
regulations for the proper implementation of this Act;
q.)
Initiate and undertake a national campaign for drug prevention and drug control programs,
where it may enlist the assistance of any department, bureau, office, agency, or instrumentality of the
government, including government-owned and/or controlled corporations, in the anti-illegal drugs
drive, which may include the use of their respective personnel, facilities, and resources for a more
resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers; and
r.)
Submit an annual and periodic report to the Board as may be required form time to time, and
perform such other functions as may be authorized or required under existing laws and as directed by
the President himself/herself or as recommended by the congressional committees concerned.
Note:
There are however certain power and duties of the PDEA enumerated under Section 84 of R.A. 9165
which seems to overlap with the functions of prosecutors such as (1) the preparation for prosecution or
the causing of the filing of appropriate criminal cases for violation of the Law; and (2) filing of charges
and transmittal of evidence to the proper court and which have to be clarified in the Implementing Rules
and Regulation that may be issued by the DDB and the PDEA later.
JURISDICTION OVER DRUG RELATED CASES
The Supreme Court shall designate special court from among the existing Regional Trial Court
in each judicial region to exclusively try and hear cases involving violations of this Act. The number of
courts designated in each judicial region shall be based in their respective jurisdiction.
The DOJ shall designate special prosecutor to exclusively handle cases involving violations of
this Act.
PRELIMINARY INVESTIGATION
OF DANGEROUS DRUG CASES
The preliminary investigation of cases filed under this Act shall be terminated within the period of
thirty (30) days from the date of their filing
When the preliminary investigation is conducted by a public prosecutor and probable cause is
established, the corresponding information shall be filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary investigation is conducted by a judge and a probable
cause is found to exist, the corresponding information shall be filed by the proper prosecutor within fortyeight (48) hours from the date of receipt of the records of the case. (Sec. 90)
The Department of Justice shall designate special prosecutors to exclusively handle cases
involving violations of the Dangerous Drug Act of 2002 (Sec. 90)
Notwithstanding the provision of any law to the contrary, a positive finding for the use of
dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an
offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable
(Sec. 25)
Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, including the
Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and
Essential Chemicals
Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation, delivery,
distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential
chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of
any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other
laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the
proceeds and properties derived from unlawful act, including, but not limited to, money and other assets
obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless
they are the property of a third person not liable for the unlawful act, but those which are not of lawful
commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act.
After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all
the assets and properties of the accused either owned or held by him or in the name of some other persons if
the same shall be found to be manifestly out of proportion to his/her lawful income; Provided, however, That if
the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of
confiscation or forfeiture.
During the pendency of the case in the Regional Trial Court, no property, or income derived thereform,
which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in
custodio legis and no bond shall be admitted for the release of the same.
The proceeds of any sale or disposition of any property confiscated under this section, forfeiture, custody
and maintenance of the property pending disposition, as well as the expense for publication and court costs.
The proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against
illegal drugs.
CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED
AND/OR SURRENDERED DANGEROUS DRUGS, ETC.
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 that was confiscated, seized and/or surrendered, for proper disposition in the following manner:
1.
The apprehending 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;
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 examination;
3.
A certification of the forensic laboratory examination results, which shall be under oath by the
forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the
subject items/s: Provided, that when the volume of dangerous drugs, and controlled precursors
and essential chemicals does not allow the completion of testing within the time frame, a partial
laboratory examination report shall be provisionally by the forensic laboratory: Provided, however,
that a final certification on the same within the next twenty-four (24) hours;
4.
After the filing of the criminal case, the Court shall within seventy-two (72) hours, conduct an
ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of
dangerous drugs, and controlled precursor and essential chemicals,
including the
instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twentyfour (24) hours thereafter proceed with the destruction or burning of the same, in the presence of
the accused or the person/s from which such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the DOJ, civil society group and any
elected public official. The Board shall draw up the guidelines on the manner of proper disposition
and destruction of such item/s which shall be borne by the offender; Provided, That those item/s of
lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate
purposes; Provided, further, That a representative sample, duly weighed and recorded, is retained;
5.
The Board shall then issue a sworn statement as to the fact of destruction or burning of the
subject item/s together with the representative sample/s shall be kept to a minimum quantity as
determined by the Board;
6.
The alleged offender or his/her representative or counsel shall be allowed to personally observe
all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case
the said offender or accused refuses or fails to appoint a representative after due notice in writing to
the accused or his/her counsel within seventy-two (72) hours before the actual or destruction of the
evidence in question, the Secretary of Justice shall appoint a member of the public attorney’s office
to represent the former;
7.
After the promulgation of judgment in the criminal case wherein the representative sample/s
was presented as evidence in court, the trial prosecutor shall inform the Board of the final
termination of the case and in turn, shall request the court for leave to turn over the said
representative sample/s to the PDEA for proper disposition and destruction within twenty-foru (24)
hours from receipt of the same; and
8.
Transitory Provision: a.) Within twenty-four hours from the effectivity of this Act (R.A. 9165),
dangerous drugs defined herein which are presently in possession of law enforcement agencies
shall, with leave of court, be burned or destroyed, in the presence of representative of the Court,
DOJ, Department of Health (DOH) and the accused and/or his/her counsel, and b.) Pending the
organization of the PDEA, the custody, disposition, and burning of seized or surrendered
dangerous drugs provided under this Section shall be implemented by the DOH (Sec. 21, Art. 2,
R.A. 9165)
SUSPENSION OF SENTENCE OF
FIRST-TIME MINOR OFFENDER
An accused who is over fifteen (15) years of age at the time of the commission of the offense
mentioned in Section 11 of R.A. 9165 but not more that eighteen (18) years of age at the time when the
judgment should have been promulgated after having been found guilty of said offense, may be given the
benefits of a suspended sentence, subject to the following conditions:
a.) He/She has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs
Act of 1972, as amended; or of the Revised Penal Code; or any special penal laws;
b.) He/She has not been previously committed to a Center or to the care of a DOH-accredited physician; and
c.) The Board favorably recommends that his/her sentence be suspended.
PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE BY A FIRST-TIME MINOR
OFFENDER
The privilege of suspended sentence shall be availed of only once by accused drug dependent who
is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section
15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been
promulgated. (Sec. 68)
PROMULAGATION OF SENTENCE
FOR FIRST-TIME OFFENDER
If the accused first-time minor offender violates any of the conditions of his/her suspended sentence,
the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over
him, including the rules and regulations of the Center should confinement be required, the court shall
pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. (Sec. 69)
PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR OFFENDER IN LIEU OF
IMPRISONMENT
Upon promulgation of the sentence, the court may, in its discretion, place the accused under
probation, even if the sentence provided under this Act is higher than that provided under existing law on
probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and
rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board
of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the
probation, the Board shall submit a written report to the court recommending termination of probation and a
final discharge of the probationer, whereupon the court shall issue such an order.
The community service shall be complied with under conditions, time and place as may be
determined by the court in its discretion and upon the recommendation of the Board and shall apply only to
violators of Section 15 of this Act. The completion of the community service shall be under the supervision
and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board
shall render a report on the manner of compliance of said community service. The court in its discretion may
require extension of the community service or order a final discharge.
If the sentence promulgated by the court require imprisonment, the period spent in the Center by the
accused shall be deducted from the sentence to be served. ( Sec. 70)
WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER OF LAW ENFORCEMENT
AGENCIES AND OTHER GOVERNMENT OFFICIALS IN TESTIFYING AS PROSECUTION WITNESSES
IN DANGEROUS DRUG CASES?
Any member of law enforcement agencies or any other government official and employee who, after
due notice, fails or refuse intentionally or negligently, to appear as a witness for the prosecution in any
proceedings, involving violation of this Act, without any valid reason shall be punished with imprisonment of
not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not less than Five hundred
thousand pesos (P500,000.00), in addition to the administrative liability he/she may be meted out by his/her
immediate superior and/or appropriate body.
The immediate superior of the member of the law enforcement agency or any other government
employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two
(2) months and one (1) day but not more than six (6) years and a fine of not less than ten thousand
(P10,000.00) but not more than Fifty thousand (P50,000.00) and in addition, perpetual absolute
disqualification from public office if despite due notice to them and to the witness concerned the former does
not exert reasonable effort to present the latter to the court
The member of the law enforcement agency or any other government employee mentioned in the
proceeding paragraphs shall not be transferred or re-assigned to any other government office located in
another territorial jurisdiction during the pendency of the case in court. However, the concerned member of
the law enforcement agency or government employee may be transferred or re-assigned for compelling
reason: Provided, that his/her immediate superior shall notify the court where the case is pending of the order
to transfer or re-assign, within twenty-four (24) hours from its approval: Provided further, that his/her
immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1)day but
not more than six (6) years and a fine of not less than two (2) months and one (1) day but not more than six
(6) years and a fine of not less than Ten thousand (P10,000.00) but not more than Fifty thousand pesos
(P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fails to
notify the court of such order to transfer or re-assign.
DELAY ANF BUNGLING IN THE
PROSECUTION OF DRUG CASES
Any government officer employee tasked with the prosecution of drug-related cases under this Act,
who through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful
prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging from
twelve (12) years and one (1) day to twenty (20) years without prejudice to his/her prosecution under the
pertinent provision of the Revised Penal Code.
RECORDS TO BE KEPT BY THE
DEPARTMENT OF JUSTICE
The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not
be used for any purpose other than to determine whether or not a person accused under this Act is a firsttime offender. (Sec. 71)
LIABILITY OF A PERSON WHO VIUOLATES
THE CONFIDENTIALITY OF RECORDS
The Penalty of imprisonment ranging from six (6) months and one (1) day to six (6) years and a fine
ranging from One thousand pesos (P1,000.00) to Six thousand pesos (P6,000.00), shall be imposed upon
any person who, having official custody of or access to the confidential records of any drug dependent under
voluntary submission programs, or any one who, having gained possession of said records, whether lawfully
or not, reveals their content to any person other than those charged with the prosecution of the offense under
this Act and its implementation. The maximum penalty shall be imposed, in addition to the absolute perpetual
disqualification from any public office, when the offender is a government official or employee. Should the
records be used for unlawful purposes, such as blackmail of the drug defendant of the members of his/her
family, the penalty imposed for the crime of violation of confidentiality shall be in addition to whatever crime
he/she convicted of. (Sec. 72)
LIABILITY OF A PARENTS, SPOUSE OR
GUARDIAN WHO REFUSE TO COOPERATE
WITH THE BOARD OR ANY CONCERNED AGENCY
Any parent, spouse or guardian who, without valid reason parent, spouse or guardian who, without
valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and
rehabilitation of a drug defendant who is a minor, or in any manner, prevents or delay the after-care, follow-up
or other programs for the welfare of the accused drug defendant, whether under voluntary submission
program or compulsory submission program, may be cited in contempt by the court.
COST-SHARING IN THE TREATMENT AND REHABILITATION OF A DRUG DEFENDENT
The parents, spouse, guardian or any relative within the fourth degree of consanguinity of any person
who is confined under the voluntary submission program or compulsory submission program shall be
charged a certain percentage of the cost of his/her treatment and rehabilitation, the guidelines of which shall
be formulated by the DSWD taking into consideration the economic status of the family of the person
confined. The guidelines therein formulated shall be implemented by a social worker of the local government
unit. (Sec. 74)
LIMITED APPLICABILITY OF THE REVISED PENAL CODE
Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code
(Act. 3814) as amended, shall not apply to the provision of this Act, except in the case of minor offenders.
Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided therein
shall be reclusion perpetua to death. (Sec. 98)
EXCEPTION TO NECESSITY
OF A SEARCH WARRANT
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting
officer to make a search upon the person arrested. An officer making an arrest may take from the person
arrested any money or property found upon his person which was used in the commission of the crime or
was in fruit of the crime or which might furnish the prisoner with the means of committing violence or of
escaping, which may be used as evidence in the trial of the case.
(People v. Musa; GR 96177,
1/27/93)
LIKE ALIBI, FRAME UP IS EASY
TO FABRICATE, BUT DIFFICULT
TO PROVE
Frame-up, like alibi, is a defense that has been viewed by courts with disfavor for it can just as easily
be connected and is a common and standard line of defense in most prosecution arising from violations of
the Dangerous Drugs Act. In order for that defense to prosper, the evidence adduced must be clear and
convincing. (People v. Girang; GR 27949, 2/1/95)
BUY-BUST OPERATION
Is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in
the act of the commission of the offense. Entrapment has received judicial sanction as long as it is carried
out with due regard to constitutional and legal safeguards. (People v. Basilgo; GR 107327, 8/5/94)
POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
The testimony of the poseur-buyer or of the confidential informant is no longer material considering
that accused-appellant’s drug pushing was positively attested to. Moreover, informants are generally not
presumed in court because of the need to hide their identity and preserve their invaluable service to the
police. (People v. Girang; GR 97949, 2/1/95)
EFFECT OF LIMITATION UNDER
SECTION 19, ART. VII OF THE
CONSTITUTION ON GRANT OF PARDON
The "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution
prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal
from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the
process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or
instrumentalities of the Government concerned must require proof from the accused that he has not
appealed from his conviction or that he has withdrawn his appeal Such proof may be in the form of a
certification issued by the trial court or the appellate court, as the case may be The acceptance of the pardon
shall not operate as an abandonment or waiver of the appeal, and the release of an accused by virtue of a
pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those
responsible therefor administratively liable Accordingly, those in custody of the accused must not solely rely
on the pardon as a basis for the release of the accused from confinement. (People v. Maquilan)
RULE AS TO WHO SHOULD
BE CRIMINALLY CHARGED
The settled rule is that the determination of who should be criminally charged in court is essentially
an executive function, not a judicial one. As the officer authorized to direct and control the prosecution of all
criminal actions, the prosecutor is tasked to ascertain whether there is sufficient ground to engender a wellfounded belief that an offense has been committed and that the accused is probably guilty thereof. (People
v. Esparas; GR 120034, July 10, 1998)
WHEN THERE IS A WAIVER
OF WARRANTLESS ARREST
The appellants are now precluded from assailing the warrantless search and seizure when they
voluntarily submitted to it as shown by their actuation during the search and seizure. The appellants never
protested when SPO3 Jesus Faller, after identifying himself as a police officer, opened the tin can loaded in
the appellants' vehicle and found eight (8) bundles. And when Faller opened one of the bundles, it smelled of
marijuana. The NBI later confirmed the eight (8) bundles to be positive for marijuana. Again, the appellants
did not raise any protest when they, together with their cargo of drugs and their vehicle, were brought to the
police station for investigation and subsequent prosecution. We have ruled in a long line of cases that:
"When one voluntarily submits to a search or consents to have it made on his person
or premises, he is precluded from later complaining thereof (Cooley, Constitutional
Limitations, 8th ed., vol. I, page 631). The right to be secure from unreasonable search may,
like every right, be waived and such waiver may be made either expressly or impliedly."
The appellants effectively waived their constitutional right against the search and seizure in question
by their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty upon
arraignment and by participating in the trial. (People v. Correa; GR 119246, Jan. 30, ’98)
WHEN USE OF MOTOR VEHICLE
IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING
Simply stated, the motor vehicle which was used to transport prohibited drugs was not purposely
sought to facilitate the commission of the crime since such act of transporting constitutes the crime itself,
punishable under Section 4, Article II of Republic Act No. 6425, as amended. That a motor vehicle was used
in committing the crime is merely incidental to the act of transporting prohibited drugs. The use of a motor
vehicle is inherent in the crime of transporting as it must of necessity accompany the commission thereof;
hence, such use is not an aggravating circumstance.
(People v. Correa)
CASES WHEN WARRANTLESS SEARCH IS ALLOWED
1.
Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules
of Court and by prevailing jurisprudence;
2.
Seizure of evidence in "plain view," the elements of which are:
(a)
a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be
where they are;
(c)
the evidence must be immediately apparent, and
(d)
"plain view" justified mere seizure of evidence without further search;
3.
Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility
reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;
4.
5.
6.
7.
Consented warrantless search;
Customs search;
Stop and Frisk; and
Exigent and Emergency Circumstances.
(People v. Menguin; GR 120915, Apr. 13, ’98)
CASES WHEN SEARCH WITHOUT
A WARRANT WAS VALID
In People v. Tangliben, acting on information supplied by informers, police officers conducted a
surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may
commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At 9:30 in
the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They
confronted him and requested him to open his bag but he refused. He acceded later on when the policemen
identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers
only knew of the activities of Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their informant regarding
Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the
policemen knew that the Victory Liner compound is being used by drug traffickers as their "business
address". More significantly, Tangliben was acting suspiciously. His actuations and surrounding
circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case,
there is no single indication that Aruta was acting suspiciously.
In People v. Malmstedt, the Narcom agents received reports that vehicles coming from Sagada
were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had
prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since
the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion of the
officers conducting the operation. The Court held that in light of such circumstances, to deprive the agents of
the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence
and ineffectiveness in law enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police
officers had reasonable time within which to secure a search warrant. Second, Aruta's identity was priorly
ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving
vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was searched
while about to cross a street.
In People v. Bagista, the NARCOM officers had probable cause to stop and search all vehicles
coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from
their regular informant that a woman having the same appearance as that of accused-appellant would be
bringing marijuana from up north. They likewise had probable cause to search accused-appellant's
belongings since she fitted the description given by the NARCOM informant. Since there was a valid
warrantless search by the NARCOM agents, any evidence obtained in the course of said search is
admissible against accused-appellant. Again, this case differs from Aruta as this involves a search of a
moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the
requirements of a search warrant.
In Manalili v. Court of Appeals and People, the policemen conducted a surveillance in an area of
the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the
place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He was
observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to
avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When
he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to
accost accused-appellant to determine if he was actually "high" on drugs due to his suspicious actuations,
coupled with the fact that based on information, this area was a haven for drug addicts.
This case is similar to People v. Aminnudin where the police received information two days before
the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was
known, the vehicle was identified and the date of arrival was certain. From the information they had received,
the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a
warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was
brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not
be used against him.
Another recent case is People v. Encinada where the police likewise received confidential
information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in
marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This
intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his
exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This
Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the
lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot
serve as an excuse for violating Encinada's constitutional right.
People v. Solayao, applied the stop and frisk principle which has been adopted in Posadas v. Court
of Appeals. In said case, Solayao attempted to flee when he and his companions were accosted by
government agents. In the instant case, there was no observable manifestation that could have aroused the
suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. To reiterate,
accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases,
accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves
as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a
suspicion that accused-appellant was committing a crime.
This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable
to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the
warrantless search effected immediately thereafter equally lawful. On the contrary, the most essential
element of probable cause, as expounded above in detail, is wanting in the instant case making the
warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest
was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could not be used
as evidence against her.
(People v. Menguin)
WHEN SEARCH IS NOT VALID
Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit
one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not
acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and
conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and
identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the
informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them
to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant.
This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee
against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid
requirements of probable cause and warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of
accused-appellant's bag, there being no probable cause and the accused-appellant not having been lawfully
arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent search
was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against
unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles
seized could not be used as evidence against accused-appellant for these are "fruits of a poisoned tree" and,
therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution. (People v. Menguin)
WHEN VOLUNTARY SUBMISSION
TO SEARCH IS INAPPLICABLE
Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in handing
over her bag to the NARCOM agents could not be construed as voluntary submission or an implied
acquiescence to the unreasonable search. The instant case is similar to People v. Encinada.
(People
v.
Menguin)
WHEN SEARCH IS NOT
ALLOWED AFTER
AN ARREST IS MADE
In the case of People v. Lua, this Court held:
"As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored
it apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful, the
warrantless search made inside the appellant's house became unlawful since the police operatives were not
armed with a search warrant. Such search cannot fall under "search made incidental to a lawful arrest," the
same being limited to body search and to that point within reach or control of the person arrested, or that
which may furnish him with the means of committing violence or of escaping. In the case at bar, appellant
was admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner portion of
his house was within his reach or control.
(Espano v. C.A.; GR 120431, April 1, ’98)
MEANING OF “TO TRANSPORT”
IN DRUG CASES
In People vs. Lo Ho Wing, the Court defined the term "transport", as used under the Dangerous
Drugs Act to mean "to carry or convey from one place to another" , the operative words being "to carry or to
convey". The fact that there is actual conveyance suffices to support a finding that the act of transporting was
committed. It is immaterial whether or not the place of destination was reached. (People v. Latura)
WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW THEN WENT INSIDE AND
ARRESTED THOSE INSIDE WHO ARE PACKING MARIJUANA. THE SAME IS ILLEGAL
The police officers intentionally peeped first through the window before they saw and ascertained the
activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a
search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot
even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such
showing.
On the contrary, it indicates that the apprehending officers should have conducted first a surveillance
considering that the identities and address of the suspected culprits were already ascertained. After
conducting the surveillance and determining the existence of probable cause for arresting accusedappellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The
arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained
during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in
faithful obeisance to the fundamental law. (PP -vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R. No.
125754, Dec. 22, 1999)
SEARCH AND SEIZURE WITHOUT THE REQUISITE JUDICIAL WARRANT IS ILLEGAL AND VOID AB
INITIO
As a general rule, the procurement of a search warrant is required before law enforcer may validly
search or seize the person, house, papers or effects of any individual. In People v. Valdez, the court ruled
that search and seizure conducted without the requisite judicial warrant is illegal and void ab initio.
x
x
x
“Lawmen cannot be allowed to violate the very law they are expected to enforce.” The Court is not
unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous drugs.
However, quick solutions of crimes and apprehension of malefactors do not justify a callous disregard of the
Bill of Rights”. We need not underscore that the protection against illegal search and seizures is
constitutionally mandated and only under specific instances are seizures allowed without warrants.
In this case, the prosecution’s evidence clearly established that the police conducted a search of accused’s
backyard garden without warrant; they had sufficient time to obtain a search warrant; they failed to secure
one. There was no showing of urgency or necessity for the warrantless search, or the immediate seizure of
the marijuana plants. (People vs. Alberto Pasudag)