Dear PAO,

My brother was walking on our street when he was arrested by two police officers from the nearest police station in our area. My brother and the rest of the family members were clueless as to the alleged crime that my brother had committed until we learned that he was charged with Section 11 of Republic Act 9165 (Comprehensive Dangerous Drugs Act of 2002). Is there a penalty for the planting of dangerous drugs? Also, assuming that he was only walking when he was arrested and found with the planted dangerous drugs, is the arrest valid?

Chirly

Dear Chirly,

The answer to your first question is yes, and the same is found in the provisions of Republic Act 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," as amended. Succinctly, Section 3 (cc) and Section 29 of the said law define and penalize the illegal planting of evidence, to wit:

"Section 3. (cc) 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 x x x of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this act. xxx xxx

Section 29. Criminal Liability for Planting of Evidence. Decade-long, any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death."

Applying the foregoing, any person found planting dangerous drugs on any person in order to incriminate the latter for any violation of the Comprehensive Dangerous Drugs Act, such as the crime of illegal possession of dangerous drugs under Section 11 thereof, is penalized by law.

Proceeding to your second question, the answer is highly dependent upon the prevailing factual circumstance surrounding the arrest. Nonetheless, assuming that your brother was merely walking when he was suddenly arrested, then the argument against the legality of the arrest is plausible.

For your guidance, there are three grounds that will justify a warrantless arrest. As held in the case of Veridiano vs. People (G.R. No. 200370, June 7, 2017), ponencia of Associate Justice Marvic M.V. F. Leonen, a warrantless arrest and the incidental search following the arrest is considered illegal when at the time of the arrest the accused was not exhibiting an overt act suggesting that he was in possession of illegal drugs, thus:

"Failure to comply with the overt act test renders an inflagrante delicto arrest constitutionally infirm. In Cogaed, the warrantless arrest was invalidated as an in flagrante delicto arrest because the accused did not exhibit an overt act within the view of the police officers suggesting that he was in possession of illegal drugs at the time he was apprehended.

xxx xxx xxx

In this case, petitioner's arrest could not be justified as an inflagrante delicta arrest under Rule 113, Section 5(a) of the Rules of Court. He was not committing a crime at the checkpoint. Petitioner was merely a passenger who did not exhibit any unusual conduct in the presence of the law enforcers that would incite suspicion. In effecting the warrantless arrest, the police officers relied solely on the tip they received. Reliable information alone is insufficient to support a warrantless arrest absent any overt act from the person to be arrested indicating that a crime has just been committed, was being committed or is about to be committed." (Emphasis and underscoring supplied)

In the case of your brother, if it is proven that he was merely walking when he was arrested and did not exhibit any overt act that he was in possession of any dangerous drugs or was in the act of committing any crime, then, in line with the cited rule and jurisprudence, his arrest is considered illegal and invalid.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor's note: Dear PAO is a daily column of the Public Attorney's Office. Questions for Chief Acosta may be sent to [email protected]