3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

739 PHIL. 578

FIRST DIVISION

[ G.R. No. 200748, July 23, 2014 ]

JAIME D. DELA CRUZ, PETITIONER, VS. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

DECISION

SERENO, C.J.:

This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from
the Decision[1] dated 22 June 2011 issued by the Twentieth Division of the Court of
Appeals (CA) and Resolution[2] dated 2 February 2012 issued by the Former Twentieth
Division of the CA in CA- G.R. C.R. No. 00670.

THE ANTECEDENT FACTS

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of
Republic Act No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by
the Graft Investigation and Prosecution Officer of the Office of the Ombudsman –
Visayas, in an Information[3] dated 14 February 2006, which reads:

That on or about the 31st day of January 2006, at Cebu City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named 
accused, JAIME D. DE LA CRUZ, a public officer, having been duly
appointed and qualified to such public position as Police Officer 2 of the
Philippine National Police (PNP) assigned in the Security Service Group of
the Cebu City Police Office, after having been arrested by agents of the
National Bureau of Investigation (NBI) in an entrapment operation, was
found positive for use of METHAMPHETAMINE HYDROCHLORIDE
commonly known as “Shabu”, the dangerous drug after a confirmatory test
conducted on said accused.

CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the
charge. The records do not reveal whether De la Cruz was likewise charged for
extortion.

VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the
https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 1/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

agents and special investigators of the National Bureau of Investigation, Central

Visayas Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from Corazon
Absin (Corazon) and Charito Escobido (Charito). The complainants claimed that at 1:00
a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of
Charito, was picked up by several unknown male persons believed to be police officers
for allegedly selling drugs. An errand boy gave a number to the complainants, and
when the latter gave the number a ring, they were instructed to proceed to the Gorordo
Police Office located along Gorordo Avenue, Cebu City. In the said police office, they
met “James” who demanded from them ?100,000, later lowered to ?40,000, in
exchange for the release of Ariel. After the meeting, the complainants proceeded to the
NBI-CEVRO to file a complaint and narrate the circumstances of the meeting to the
authorities. While at the NBI-CEVRO, Charito even received calls supposedly from
“James” instructing her to bring the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the
complainants. A team was immediately formed to implement an entrapment operation,
which took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo
Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a pre-
marked ?500 bill dusted with fluorescent powder, which was made part of the amount
demanded by “James” and handed by Corazon. Petitioner was later brought to the
forensic laboratory of the NBI-CEVRO where forensic examination was done by forensic
chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug
testing. It later yielded a positive result for presence of dangerous drugs as indicated in
the confirmatory test result labeled as Toxicology (Dangerous Drugs) Report No. 2006-
TDD-2402 dated 16 February 2006.

VERSION OF THE DEFENSE

The defense presented petitioner as the lone witness. He denied the charges and
testified that while eating at the said Jollibee branch, he was arrested allegedly for
extortion by NBI agents. When he was at the NBI Office, he was required to extract
urine for drug examination, but he refused saying he wanted it to be done by the
Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request was,
however, denied. He also requested to be allowed to call his lawyer prior to the taking
of his urine sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision[4] dated 6 June
2007, found the accused guilty beyond reasonable doubt of violating Section 15, Article
II of R.A. 9165 and sentenced him to suffer the penalty of compulsory rehabilitation for
a period of not less than six (6) months at the Cebu Center for the Ultimate
Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City.[5]

Petitioner filed an appeal assigning as error the RTC’s validation of the result of the
urine test despite its dubiousness having been admitted in spite of the lack of legal
basis for its admission. First, he alleges that the forensic laboratory examination was
conducted despite the fact that he was not assisted by counsel, in clear violation of his

https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 2/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt
notwithstanding the lack of sufficient basis to convict him.

THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked
prevailing jurisprudence, which states that drug testing conducted under circumstances
similar to his would violate a person’s right to privacy. The appellate court nevertheless
denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors
the use of hearsay evidence as basis for his conviction and the questionable
circumstances surrounding his arrest and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment,[6] saying
that “petitioner’s arguments cannot be the subject of a petition for review on certiorari
under Rule 45, as they  involve questions of facts which may not be the subject
thereof; after his arraignment, he can no longer contest the validity of his arrest, less
so at this stage of the proceedings; his guilt has been adequately established by direct
evidence; and the manner in which the laboratory examination was conducted was
grounded on a valid and existing law.

THE ISSUE

We deem it proper to give due course to this Petition by confronting head-on the issue
of whether or not the drug test conducted upon the petitioner is legal.

OUR RULING

We declare that the drug test conducted upon petitioner is not grounded upon any
existing law or jurisprudence.

We gloss over petitioner’s non-compliance with the Resolution[7] ordering him to submit
clearly legible duplicate originals or certified true copies of the assailed Decision and
Resolution.

Petitioner was charged with use of dangerous drugs in violation of the law, the
pertinent provision of which reads:

Section 15. Use of Dangerous Drugs. – A person apprehended or arrested,

who is found to be positive for use of any dangerous drug, after a
confirmatory test, shall be imposed a penalty of a minimum of six (6)
months rehabilitation in a government center for the first offense, subject to
the provisions of Article VIII of this Act. If apprehended using any dangerous
drug for the second time, he/she shall suffer the penalty of imprisonment

https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 3/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

ranging from six (6) years and one (1) day to twelve (12) years and a fine
ranging from Fifty thousand pesos (?50,000.00) to Two hundred thousand
pesos (?200,000.00): Provided, That this Section shall not be applicable
where the person tested is also found to have in his/her possession such
quantity of any dangerous drug provided for under Section 11 of this Act, in
which case the provisions stated therein shall apply.[8]

The RTC subsequently convicted petitioner, ruling that the following elements of Section
15 were established: (1) the accused was arrested; (2) the accused was subjected to
drug test; and (3) the confirmatory test shows that he used a dangerous drug.

Disregarding petitioner’s objection regarding the admissibility of the evidence, the

lower court also reasoned that “a suspect cannot invoke his right to counsel when he is
required to extract urine because, while he is already in custody, he is not compelled to
make a statement or testimony against himself. Extracting urine from one’s body is
merely a mechanical act, hence, falling outside the concept of a custodial investigation.”

We find the ruling and reasoning of the trial court, as well as the subsequent
affirmation by the CA, erroneous on three counts.

The drug test in Section 15 does not cover

persons apprehended or arrested for any

unlawful act, but only for unlawful acts

listed under Article II of R.A. 9165.

First, “[a] person apprehended or arrested” cannot literally mean any person
apprehended or arrested for any crime. The phrase must be read in context and
understood in consonance with R.A. 9165. Section 15 comprehends persons arrested
or apprehended for unlawful acts listed under Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for,
among others, the “importation,”[9] “sale, trading, administration, dispensation,
delivery, distribution and transportation”,[10] “manufacture”[11] and “possession”[12] of
dangerous drugs and/or controlled precursors and essential chemicals; possession
thereof “during parties, social gatherings or meetings”[13]; being “employees and
visitors of a den, dive or  resort”;[14] “maintenance of a den, dive or resort”;[15] “illegal
chemical diversion of controlled precursors and essential chemicals”[16]; “manufacture
or delivery”[17] or “possession”[18] of equipment, instrument, apparatus, and other
paraphernalia for dangerous drugs and/or controlled precursors and essential
chemicals; possession of dangerous drugs “during parties, social gatherings or
meetings”[19]; “unnecessary”[20] or “unlawful”[21] prescription thereof; “cultivation or
culture of plants classified as dangerous drugs or are sources thereof”;[22]and
“maintenance and keeping of original records of transactions on dangerous drugs
and/or controlled precursors and essential chemicals.”[23]To make the provision
applicable to all persons arrested or apprehended for any crime not listed under Article
II is tantamount to unduly expanding its meaning. Note that accused appellant here
https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 4/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of
the law to rehabilitate persons apprehended or arrested for the unlawful acts
enumerated above instead of charging and convicting them of other crimes with
heavier penalties. The essence of the provision is more clearly illustrated in People v.
Martinez[24]as follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11

(Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of
R.A. No. 9165, with regard to the charges that are filed by law enforcers.
This Court notes the practice of law enforcers of filing charges under Sec. 11
in cases where the presence of dangerous drugs as basis for possession is
only and solely in the form of residue, being subsumed under the last
paragraph of Sec. 11.  Although not incorrect, it would be more in
keeping with the intent of the law to file charges under Sec. 15
instead in order to rehabilitate first time offenders of drug use,
provided that there is a positive confirmatory test result as required
under Sec. 15. The minimum penalty under the last paragraph of Sec. 11
for the possession of residue is imprisonment of twelve years and one day,
while the penalty under Sec. 15 for first time offenders of drug use is a
minimum of six months rehabilitation in a government center. To file charges
under Sec. 11 on the basis of residue alone would frustrate the objective of
the law to rehabilitate drug users and provide them with an opportunity to
recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form
of residue on the drug paraphernalia, and the accused were found positive
for use of dangerous drugs.  Granting that the arrest was legal, the evidence
obtained admissible, and the chain of custody intact, the law enforcers
should have filed charges under Sec. 15, R.A. No. 9165 or for use of
dangerous drugs and, if there was no residue at all, they should have been
charged under Sec. 14 (Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs During Parties, Social
Gatherings or Meetings). Sec. 14 provides that the maximum penalty under
Sec. 12(Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs) shall be imposed on any person who
shall possess any equipment, instrument, apparatus and other paraphernalia
for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment
of four years and a fine of P50,000.00.  In fact, under the same section, the
possession of such equipment, apparatus or other paraphernalia is prima
facie evidence that the possessor has used a dangerous drug and shall be
presumed to have violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug

users, this Court thus calls on law enforcers and prosecutors in
dangerous drugs cases to exercise proper discretion in filing charges
when the presence of dangerous drugs is only and solely in the form
https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 5/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

of residue and the confirmatory test required under Sec. 15 is

positive for use of dangerous drugs. In such cases, to afford the accused
a chance to be rehabilitated, the filing of charges for or involving possession
of dangerous drugs should only be done when another separate quantity of
dangerous drugs, other than mere residue, is found in the possession of the
accused as provided for in Sec. 15. (Emphasis supplied)

Furthermore, making the phrase “a person apprehended or arrested” in Section 15

applicable to all persons arrested or apprehended for unlawful acts, not only under R.A.
9165 but for all other crimes, is tantamount to a mandatory drug testing of all persons
apprehended or arrested for any crime. To overextend the application of this provision
would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs
Board and Philippine Drug Enforcement Agency,[25]to wit:

x x x [M]andatory drug testing can never be random and suspicionless. The

ideas of randomness and being suspicionless are antithetical to their being
made defendants in a criminal complaint. They are not randomly picked;
neither are they beyond suspicion. When persons suspected of committing a
crime are charged, they are singled out and are impleaded against their will.
The persons thus charged, by the bare fact of being haled before the
prosecutor’s office and peaceably submitting themselves to drug testing, if
that be the case, do not necessarily consent to the procedure, let alone
waive their right to privacy. To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool for
criminal prosecution, contrary to the stated objectives of RA 6195.
Drug testing in this case would violate a person’s right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the
accused persons are veritably forced to incriminate themselves.
(Emphasis supplied)

The drug test is not covered by

allowable non-testimonial

compulsion.

We find that petitioner never raised the alleged irregularity of his arrest before his
arraignment and raises the issue only now before this tribunal; hence, he is deemed to
have waived his right to question the validity of his arrest curing whatever defect may
have attended his arrest.[26] However, “a waiver of an illegal warrantless arrest does
not mean a waiver of the inadmissibility of evidence seized during an illegal warrantless
arrest.”[27]

We are aware of the prohibition against testimonial compulsion and the allowable
exceptions to such proscription. Cases where non-testimonial compulsion has been
allowed reveal, however, that the pieces of evidence obtained were all material to the
principal cause of the arrest.

https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 6/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

The constitutional right of an accused against self-incrimination proscribes

the use of physical or moral compulsion to extort communications from the
accused and not the inclusion of his body in evidence when it may be
material. Purely mechanical acts are not included in the prohibition as the
accused does not thereby speak his guilt, hence the assistance and guiding
hand of counsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The
essence of the right against self-incrimination is testimonial compulsion, that
is, the giving of evidence against himself through a testimonial act. (People
vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455
[1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence, it has been held
that a woman charged with adultery may be compelled to submit to physical
examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62
[1920]) and an accused may be compelled to submit to physical
examination and to have a substance taken from his body for medical
determination as to whether he was suffering from gonorrhea which was
contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel
morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to
have the outline of his foot traced to determine its identity with bloody
footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308
[1921]) and to be photographed or measured, or his garments or shoes
removed or replaced, or to move his body to enable the foregoing things to
be done.(People vs. Otadora, 86 Phil. 244 [1950]) [28]  (Emphasis supplied)

In the instant case, we fail to see how a urine sample could be material to the charge
of extortion. The RTC and the CA, therefore, both erred when they held that the
extraction of petitioner’s urine for purposes of drug testing was “merely a mechanical
act, hence, falling outside the concept of a custodial investigation.”

We note a case where a urine sample was considered as admissible. In Gutang v.

People,[29] the petitioner therein and his companions were arrested in connection with
the enforcement of a search warrant in his residence. A PNP-NARCOM team found and
confiscated shabu materials and paraphernalias. The petitioner and his companions in
that case were also asked to give urine samples, which yielded positive results. Later,
the petitioner therein was found guilty of the crime of illegal possession and use of
prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in
evidence, since it was derived in effect from an uncounselled extrajudicial confession.

In the Gutang et al. case, the Court clarified that “what the Constitution prohibits is the
use of physical or moral compulsion to extort communication from the accused, but not
an inclusion of his body in evidence, when it may be material.” The situation in Gutang
was categorized as falling among the exemptions under the freedom from testimonial
compulsion since what was sought to be examined came from the body of the accused.
The Court said:

This was a mechanical act the accused was made to undergo which was not
meant to unearth undisclosed facts but to ascertain physical attributes
determinable by simple observation. In fact, the record shows that petitioner
https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 7/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

and his co-accused were not compelled to give samples of their urine but
they in fact voluntarily gave the same when they were requested to undergo
a drug test.

Assuming arguendo that the urine samples taken from the petitioner are
inadmissible in evidence, we agree with the trial court that the record is
replete with other pieces of credible evidence including the testimonial
evidence of the prosecution which point to the culpability of the petitioner
for the crimes charged.

We emphasize that the circumstances in Gutang are clearly different from the
circumstances of petitioner in the instant case.  First, Gutang was arrested in relation
to a drug case. Second, he volunteered to give his urine. Third, there were other pieces
of evidence that point to his culpability for the crimes charged. In the present case,
though, petitioner was arrested for extortion; he resisted having his urine sample
taken; and finally, his urine sample was the only available evidence that was used as
basis for his conviction for the use of illegal drugs.

The drug test was a violation of

petitioner’s right to privacy and

right against self-incrimination. 

It is incontrovertible that petitioner refused to have his urine extracted and tested for
drugs. He also asked for a lawyer prior to his urine test. He was adamant in exercising
his rights, but all of his efforts proved futile, because he was still compelled to submit
his urine for drug testing under those circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all
arrested persons regardless of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously

track down offenders in their laudable effort to curb the pervasive and deleterious
effects of dangerous drugs on our society, they must, however, be constantly mindful of
the reasonable limits of their authority, because it is not unlikely that in their clear

https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 8/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

intent to purge society of its lawless elements, they may be knowingly or unknowingly
transgressing the protected rights of its citizens including even members of its own
police force.

WHEREFORE, premises considered, the assailed Decision dated  22 June 2011 issued
by the Twentieth Division, and the Resolution dated    2 February 2012 issued by the
former Twentieth Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET
ASIDE. Petitioner is hereby ACQUITTED.

SO ORDERED.

Leonardo-De Castro, Bersamin, Villarama, Jr. and Reyes, JJ., concur.

[1] Rollo, pp. 20-30; Penned by Associate Justice Ramon Paul L. Hernando and

concurred in by Associate Justices Edgardo L. delos Santos and Victoria Isabel A.

Paredes.

[2] Id. at 32.

[3] Rollo, p. 41.

[4] Rollo, pp. 33-40; Penned by former RTC Judge (now CA Justice) Gabriel T. Ingles.

[5] Id. at 40.

[6] Id. at 69-86.

[7] Id. at 64.

[8] R.A. 9165.

[9] Section 4.

[10] Section 5.

[11] Section 8.

[12] Section 11.

[13] Section 13.

[14] Section 7.

[15] Section 6.

https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 9/10
3/15/22, 3:10 PM E-Library - Information At Your Fingertips: Printer Friendly

[16] Section 9.

[17] Section 10.

[18] Section 12.

[19] Section 14.

[20] Section 18.

[21] Section 19.

[22] Section 16.

[23] Section 17.

[24] G.R. No. 191366, 13 December 2010, 637 SCRA 791.

[25] 591 Phil. 393 (2008).

[26] People v. Racho, G.R. No. 186529, 3 August 2010, 626 SCRA 633.

[27] People v. Lapitaje, 445 Phil. 731 (2003).

[28] People v. Gallarde, 382 Phil. 718 (2000).

[29] 390 Phil. 805 (2000).

Source: Supreme Court E-Library

This page was dynamically generated by the E-Library Content Management System (E-LibCMS)

https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/57255 10/10