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.

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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?

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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.

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