G.R.No.

242118, September 02, 2020

MANUEL QUILET Y FAJARDO @ "TONTING," PETITIONER, V. PEOPLE OF THE

PHILIPPINES, RESPONDENT..

DECISION

ZALAMEDA, J.:

Facts:

Petitioner Fajardo went to the Manila City Jail on 07 October 2014 to visit his boyfriend, who
was then an inmate therein. Before petitioner entered into the premises, Jail Office 3 Gregorio Leonor III
(JO3 Leonor) inspected his belongings and subjected him to a body search.

JO3 Leonor asked petitioner, who was wearing a bra, to pull up his shirt and to remove the bra's
padding. An inspection of the padding revealed an open plastic sachet containing suspected
dried marijuana leaves. Thereafter, JO3 Leonor confiscated the plastic sachet with its contents and
marked it with "GTL 04-10-14." He informed petitioner of the latter's rights as an accused, and turned
over the seized items to investigator JO2 Edgar P. Taoc (JO2 Taoc) for proper disposition.

Pursuant thereto, JO2 Taoc prepared the Letter Referral for Inquest, Booking Sheet and Arrest
Report, Chain of Custody Form, Letter Request for Laboratory Examination, and Incident Report and
Turn Over. JO2 Taoc also conducted the inventory in the presence of JO3 Dominador Noe, Jr. (JO3 Noe),
who also took photographs of the confiscated items. Later, JO2 Taoc delivered the seized items to the
PDEA crime laboratory and handed them to Forensic Chemist Richard M. Solis. The laboratory
examination confirmed the seized items to be marijuana.

Ruling of the RTC

After trial on the merits, the RTC rendered its 17 May 2016 Decision, convicting petitioner of the offense
charged. The trial court concluded that the prosecution had successfully proven the elements needed to
convict petitioner for illegal possession of dangerous drugs.

Ruling of the CA

On 12 July 2018, the CA affirmed the RTC's ruling, as it agreed that the prosecution proved all the
elements of illegal possession of dangerous drugs. The CA likewise found petitioner's argument on the
supposed irregularity of the strip search performed by JO3 Leonor unmeritorious.

Issue:

The controversy boils down to whether or not the arresting officers observed the proper
procedure in the handling and custody of the seized drugs, ultimately convicting petitioner for the crime
of illegal possession of dangerous drugs.
Rulings:

The Petition is meritorious.

Central to the proper resolution of this case are the provisions of BJMP Standard Operating
Procedure (SOP) No. 2010-05, Our previous ruling in the case of Tuates v. People of the Philippines, and a
painstaking look at the chain of custody of the item supposedly seized from petitioner.

The arresting officers failed to

observe the prescribed procedure in
searching or frisking petitioner

The search of the persons of jail visitors and of their belongings fall under the general rubric of
"institutional security." This is clearly spelled out in the "Background/Rationale" of BJMP SOP No. 2010-
05, which reads:

The proliferation of contraband in jail facilities is a perennial problem that the BJMP is confronting since
its inception. Contraband in the hands of inmates jeopardize jail security and hamper rehabilitation
programs.

The use of various types of searches shall be necessary to protect the safety of visitors, inmates[,] and
personnel. It shall be used to detect and secure contraband with the aim of safeguarding the security of
the facility.

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While the conduct of various types of searches is indispensable [sic] in our campaign to prevent the
entry of contraband, it should be reasonably implemented with utmost care and fairness to protect, the
rights of the subject[,] as well as to shield the jail personnel from harassment complaints.

The avowed purpose and scope of the SOP is "to provide adequate safeguards against the introduction
of contraband into jail facilities and to establish guidelines for different types of searches."

BJMP SOP No. 2010-05 also lays down certain general policies, two (2) of which are relevant to this case:

2. All visitors before being allowed entry into the jail must be requested to submit the things they
carry to a thorough inspection and a thorough body search to prevent the entry of contraband/s
in our jails.

3. . xxxx All visitors who refuse to undergo search and inspection shall be refused entry into the
jail.
These general policies reiterate that the search of both the belongings and persons of jail visitors serves
these main purposes: institutional security and as a condition for admission of a visitor into the jail
facility.

The types of body searches defined and regulated by BJMP SOP No. 2010-05 are classified from the least
to the most intrusive: (1) pat/frisk and rub body search; (2) strip search; and, (3) visual body cavity
search. They are defined in BJMP SOP No. 2010-05 as follows:

Pat/Frisk Search - is a search wherein the officer pats or squeezes the subject's clothing to attempt to
detect contraband/s. For same gender searches the Pat/Frisk search is normally accomplished in concert
with Rub Search.

Rub Search - is a search wherein the officer rubs and/or pats the subject's body over the clothing, but in
a more intense and thorough manner. In a rub search, the genital, buttocks, and breast (of females)
areas are carefully rubbed - areas which are not searched in a frisk/pat search. Rub searches shall not
be conducted on cross-gender individuals, (emphasis supplied)

Strip Search - is a search which involves the visual inspection of disrobed or partially disrobed subject.

Visual Body Cavity Search - is a search which involves the inspection of the anus and/or vaginal area,
generally requiring the subject to bend over and spread the cheeks of the buttocks; to squat and/or
otherwise expose body cavity orifices.

Each type of body search is covered by procedures discussed in great detail in the SOP. The same
document likewise directs when a search may escalate from a pat/frisk/rub search to a strip search.

If during the pat/frisk/rub search the jail officer develops probable cause that contraband is being
hidden by the subject who is not likely to be discovered, the Jail Officer shall request for a conduct of
strip search/visual body cavity search.

In this case, JO3 Leonor asked petitioner to pull up his shirt, thereby disrobing him partially. As
such, this search falls under the second type of the Strip Search - or a search involving the "visual
inspection of disrobed or partially disrobed subject." It should be noted, however, that there is nothing
on record that petitioner acted in a suspicious manner which could have allowed JO3 Leonor to "develop
probable cause," and escalate the search from pat/frisk/rub to strip search.

Even granting arguendo that such probable cause existed in said scenario, JO3 Leonor
nevertheless should have followed the detailed guidelines for a Strip Search, as laid down in Section VII
of BJMP SOP No. 2010-05, herein quoted in full:

VII. Guidelines in the Conduct of Strip Search for Visitors

The conduct of strip search shall be done provided all the following conditions are met:

1. All strip search shall be conducted with the knowledge of and directed by the Jail Warden or in his
absence by the Deputy Warden/ Jail Officer of the Day. A Strip Search/ Visual Body Cavity Search
Authorization (SSVBCSA) (Annex A) shall be accomplished by the searcher for this purpose. The SSVBCSA
Form shall include information that there is probable cause that contraband is being hidden by the
subject or subject to be strip searched is suspected of bringing contraband inside the jail. It shall
particularly state the source of information, if known, and the contraband to be brought in.

2. The visitor agrees to be strip searched which shall be in writing to shield the jail officer performing
the search from harassment complaints. For this purpose, the Waiver of Right on Strip Search / Visual
Body Cavity Search Form (Annex B) shall be signed by the visitor. It shall be duly explained by the jail
personnel performing the search and should be understood by the subject. If the subject refuses,
he/she will not be allowed to visit, (emphases supplied)

3. All strip search must be done in the confidentiality of an enclosed space. This area must restrict the
possibility of visual access by person(s) not involved in the search.

4. To perform a strip search the jail officer shall accomplish the following:

a. Direct the subject to remove his/her clothing and hand the clothing to the searcher for
inspection.

b. Clothing shall be examined by touch, using the squeeze and rub method which crushes every
part of the clothing.

c. Articles should be scanned for bulges and signs of openings or freshly sewn areas. Linings should
not be overlooked.

d. The searcher shall have the subject perform the following measures:

1. Hold his/her hands out in front of his/her body with fingers spread;

2. Turn his/her hands over showing the officer each side;

3. Raise his/her arms over head allowing the officer to view the subject's underarms;

4. Shake out his/her hair;

5. Open his/her mouth with head tilted back. Lifting his/her tongue;

6. Have the subject lift his/Tier feet so that the soles and spaces between the toes can be
examined carefully.

e. Inspection of any covered wounds, casts, false teeth, prosthesis, etc. shall be conducted with
the assistance of a jail doctor or nurse.

f. After completion of the search, the officer shall return the clothing to the subject and allow the
subject to redress.

5. If during the course of the strip search, the officer develops probable cause that contraband is
concealed in an area not readily visible during the strip search, the officer shall proceed on conducting
Visual Body Cavity Search.

xxxx
 From the foregoing, it is clear that the BJMP personnel failed to follow the procedure laid down
in BJMP SOP No. 2010-05. The prosecution did not present evidence that the Jail Warden or Jail Officer
of the Day had knowledge and directed the conduct of a strip search. The required Authorization (Annex
A) was not filled up, and the Waiver of Right Form (Annex B) was not given to petitioner to sign before
he was made to pull up his shirt.

None of the required witnesses under

RA 9165, as amended by RA 10640,
were present during the marking,
photographing and inventory of the
seized item

As part of the chain of custody procedure, RA 9165 requires that the marking, physical inventory, and
photographing of the seized items be conducted immediately after their seizure and confiscation. The
law further requires that the inventory and photographing be done in the presence of the accused or
the person from whom the items were seized, or his/her representative or counsel, as well as certain
required witnesses. Upon effectivity of the amendments introduced by RA 10640, these required
witnesses are an elected public official and a representative of the National Prosecution Service OR the
media.

The absence of the witnesses required by law does not per se render the confiscated items inadmissible.
However, a justifiable reason for such absence, or a showing of any genuine and sufficient effort to
secure the presence of the required witnesses, must be adduced. The prosecution must show that
earnest efforts were employed in contacting the witnesses enumerated in the law. Mere statements of
unavailability, absent actual serious attempts to contact the required witnesses, are unacceptable as
justifiable grounds for non-compliance.

In this case, the prosecution failed to provide sufficient justification for the failure of the
arresting officers to secure the required witnesses under the law. The prosecution had sufficient
opportunity during trial to explain the procedural lapses but glaringly left the same unacknowledged and
unjustified. Such omission casts suspicion on the corpus delicti of the offense charged, thereby creating
reasonable doubt.

In sum, the BJMP personnel failed to observe the detailed procedures for the conduct of a strip
search laid down in BJMP SOP No. 2010-05. In light of the Court's ruling in Tuates, such failure to follow
the procedures in BJMP SOP No. 2010-05 negates the. presumption of regularity in the performance of
official duties. Moreover, the contradictions as to the markings, as well as the lack of required witnesses,
cast grave doubt on the identity and integrity .of |the items seized from petitioner. With these findings,
the constitutional presumption of the innocence of the petitioner must prevail, and he must thup be
acquitted.