"Mike Chanco" and Some Major Mistakes (or, How Not to Mess Up When the G-Men Do)

(DISCLAIMER: Before we get on with everything else, let me say that this post and the post before it and any others after related to it are all opinions of a person interested in the theory of law and its enforcement. If you want legal advice, go find a lawyer. If you want my opinions, don't ask me for it 'cause I'll give it to you anyway -- of course, you shouldn't use anything I say before the bench. Heh heh.)

Today, we're going to take a further look at the fiasco that was the "arrest" of one JB Lazarte in connection with the Hayden Kho-Katrina Halili/ Maricar Reyes/ a Brazilian model sex video scandal. While Alex Maximo grapples with the social and critical thinking aspect, and rider-dude OneTamad provides convenient parking space for our friendly neighborhood off-tangent haters and hating stalkers (for what else but "stalker" can you call anyone following me around to attempt to spread venom -- and aid and abet by encouraging it), we're going to add to our previous post some things that I think we can all learn from the experience.

Let's be clear on one thing, people: I'm not going to be defending Lazarte (as many have mistakenly believed -- cripes, reading comprehension must be no longer taught in schools), nor am I going to be deriding the law enforcement agents of the National Bureau of Investigation in their attempt (mind you, attempt) to do their jobs correctly. What you need to know is that I'm writing this because civil rights are being played fast and loose... and a citizen by himself and a country at large are both suffering because of it.

Civil rights, friends, whose observance will pull us through as a people or destroy us in their absence. Civil rights -- whose defense is integral to a democracy and whose destruction will result in nihilist anarchy.

Let's begin.

***
To be able to get a feel for the events of July 4, 2009, we're going to have to piece a few accounts together. Let's start with Mike's new crushie Maan Macapagal's version:

Original website of Kho sex videos raided
abs-cbnNEWS.com | 07/04/2009 12:51 AM

The National Bureau of Investigation on Friday raided the office of a pornographic website in Bacoor, Cavite where Hayden Kho’s sex videos were first uploaded.

Members of the NBI Anti-Fraud and Computer Crime Division tracked down the exact site in Bacoor where the sex videos were first uploaded through the bureau’s technical surveillance.

The NBI said the Hayden Kho sex videos that proliferated in various porn websites originated from the Bacoor office.

Probers said the porn site used to gather an average of 60,000 hits a day, which shot up to 1.2 million hits after the Hayden Kho videos were uploaded.

The bureau invited for questioning office owner Fidel Lazarte and his sons Marvin and Jobert.

Jobert admitted maintaining the site but said they only received a copy of the video through an anonymous email. He added that the copies he uploaded were the two footages of Kho and actors Katrina Halili dancing to the tune of "Careless Whisper."

"Hobby site lang ito...me nag-email sa lahat anonymously," said Jobert.

Agents said they are currently tracking down the person who sent copies of the sex videos to the porn site. They will also probe if the videos were sold for a hefty price.

The NBI are currently preparing pornography charges against the Lazartes.

Here's the version of ABS-CBN's rival:

NBI raids website that first uploaded Hayden sex video
07/03/2009 | 08:26 PM

MANILA, Philippines — The National Bureau of Investigation (NBI) raided on Friday afternoon the office of a website in Cavite that was said to have first uploaded the sex videos of cosmetic surgeon Hayden Kho.

A team from the NBI Anti-Fraud and Computer Crimes Division (AFCCD) swooped down on the office of fleshasiadaily.com in Bacoor, Cavite and took in three people for questioning.

Vicente de Guzman III, chief of the NBI-AFCCD, identified the three men who maintain the site as Fidel Lazarte and sons Marvin and Jobert Lazarte.

Fleshasiadaily.com was the first to introduce the sex videos of Kho and actress Katrina Halili dancing to the tune of Careless Whisper, Kho and model Maricar Reyes, and a third video entitled Beautiful Girl, Head Agent Palmer Mallari told reporters.

He said the website registered 1.2 million hits every day, an indication that more than one million people viewed the sex videos daily.

According to the NBI, Jobert Lazarte denied that the website was a porn site and said the family only maintained it as a hobby.

He said they did not upload the sex videos of Kho with different women, but only the two videos showing Halili and Kho dancing to the song Careless Whisper, the NBI said.

Jobert claimed that they received the videos showing Halili and Kho through an e-mail from an unknown sender.

A check of the website shows that it offers "free porn movies" and contains sexually explicit photos and videos.

The raid came after NBI investigators conducted technical surveillance, allowing them to trace the location of the website that first uploaded the sex videos of Kho.

Mallari said the NBI is now trying to trace the source of the videos sent to fleshasiadaily.com as the sender was anonymous.

The sex videos that appeared in YouTube and other websites came from the fleshasiadaily.com website. “From the usual 60,000 hits every day, it rose to over a million hits every day," said Mallari.

He said the suspects could face pornography charges, but they could also become witnesses if they cooperate with the NBI in identifying the people behind the distribution of the sex videos. - GMANews.TV

Here's Lazarte's presumably slightly exaggerated version of the story. I hope Mike doesn't mind excerpts -- I've long been taught that excerpting and issue-spotting is vital in building cases -- in the same way some queens and captains consider to be "twisting the facts" (ROFL, really), and I'm sure that the writer in him will forgive me for cutting out the non-essential details.

(Okay, fine, "Maan Macapagal is cute pala!" is a detail that I now pay attention too. Heh heh.)

Excerpts from Full Disclosure: The Shit Day That Was Last Friday:

Hello, people. My name is JB Lazarte. The past week, news reports named me “Jobart,” “Jobert,” or “Joe Bert.” Last Friday afternoon, some NBI dude with a gun just called me “Sit The Fuck Down.” Cool name, if you ask me. Sounds like an Indian, like Mr Two Dogs Fucking you see on the Error 500 page. But most of you — in fact, all except maybe 18 of you — knew me by my pseudonym of Mike Chanco.

...

One moment you were wondering how to spend the rest of the sleepy afternoon, the next moment there was this huge NBI person with a bad-ass gun screaming at me to sit or else, with all those camera people and ABS-CBN’s Maan Macapagal taking it all in. Nope, we weren’t “manufacturing pornographies,” as some early news reports said. What I was doing in fact, and this everybody and his cousin failed to mention, was that they caught me doing the “unspeakably horrible” act of playing Guitar fucking Hero... The “Sultan of Sleaze,” who’s so evil he allegedly was the first to upload those Hayden Kho videos, who apparently has “connections” with certain criminal elements, who “manufactured pornographies,” was caught negotiating the guitar riffs of Franz Ferdinand’s “Take Me Out.”

...

Later, in the middle of all the chaos, I saw Maan Macapagal in a corner writing her news report. I saw some “outrageous inaccuracies,” and so felt the need to “correct” her on the spot. I told her FAD was not getting “20,000 hits a day,” thank you very much, but “60,000 unique visitors” before the sex video mess came out. But I didn’t correct Maan when she wrote FAD has been getting 1.2 million page views since the scandal emerged. Of course, it was a grossly inaccurate number, but my “morbid pride” outweighed my “devotion” to accuracy this time, so I let it slide.

...

We were under custody of the NBI at their main office from Friday night to Wednesday evening. To be fair, we were treated well. I could even say the NBI agents were very friendly and accommodating and they seemed people I could have been friends with had we met under different circumstances. But still, they charged me... with violation of Article 201 of the Revised Penal Code, something about engaging in “obscene publications.”

...

Thanks to the huge, insane publicity the NBI’s “invitation for questioning” has generated for us, I’ve lost most of my clients.

Here's the follow-up story, still on ABS-CBN:

Owners of Hayden sex video website sued
abs-cbnNEWS.com | 07/06/2009 8:01 PM

Authorities on Monday filed obscenity charges against two brothers for uploading the sex videos of celebrity doctor Hayden Kho in their website.

Joebert and Marvin Lazarte, owners of the porn site fleshasiadaily.com, were charged with violating Article 201 of the Revised Penal Code. The charges were filed before the Cavite Provincial Prosecutor's Office.

Agents of the National Bureau of Investigation arrested the two last Friday at their home in Zapote 2, Bacoor, Cavite. Also confiscated during the raid were the Lazartes' hard drive and laptop.

The Lazartes earlier said they only uploaded the video showing Kho and actress Katrina Halili practicing a performance of the song "Careless Whisper" for a celebrity singing competition. They also claimed that their website, which has some 1.2 million viewers daily, is not pornographic but supposedly only a "hobby site."

Initial investigation by the NBI Anti-Fraud and Computer Crimes Division showed that the Lazartes received the video via e-mail from a person identified as "dance commander."

Officials said the Lazartes must have known the source of the sex videos since they were the first to get a copy of the material before any other website.

From the computer-generated video I saw of the event (if anyone has it on YouTube, do leave a comment to add to this data package), I gathered that the NBI sent Lazarte an email, to which Lazarte replied and from there the NBI got his computer's IP address, and from there his physical address.

I think this is enough material to start, don't you?

***
Before that -- yes, friends, a short lecture -- let me tell you about my feelings on law enforcement and police procedure.

See, following proper procedure is possibly the be-all-and-end-all of civil rights in law enforcement. By following procedure, the citizen (who is presumed to be innocent before guilt is proven), the law enforcer (whose job is to uphold the law), the officer of the court (who is supposed to serve the ends of justice), and the general public all have their rights protected. By following procedure, it becomes less likely that an innocent man is tossed into the slammer -- and it becomes more likely that them fucking criminals spend their lives behind bars.

This is why I'm going to have to ask you to be patient and follow me closely as we pick at procedure. Rights are at stake here.

***
Let's start with the NBI investigation. According to the stories earlier above, the NBI employed technical surveillance.

Surveillance, ladies and gents, simply means that the NBI agents would be, in one way or another, watching every breath you take, every move you make, every bond you break (see how that Sting song is so freaking eerie?). Technical surveillance is quite possibly a fancy way of saying that they're watching you via a computer -- this is assuming that they have CIA or NSA or North Korean hacker capabilities.

Surveillance is an integral part of law enforcement. Heck, stakeouts are quite possibly the most effective means of catching crooks. However, it might be that the NBI agents made a grave procedural error in their surveillance and investigation.

See, in surveillance the key is not to have as little contact with the subject as possible; heck, if it's at all practical, there should be no contact at all. What the NBI did, however was to initiate contact by sending an email to Lazarte, which was the method to obtain his IP address.

Strike one. Possibly two. Maybe three at that.

It's no different from an undercover cop making contact with a dealer, trying to get his confidence so that the cop can bust his drug-filled ass later. However, things get sticky when the confidence is built.

See, now this data point branches into two streams: was the email to Lazarte an innocuous one, saying "Hi, Mike, your site rocks, dude!", or was it "Hi, Mike, could you give me a copy of the vid where Hayden is tapping Katrina's ass?"

If it was the first, it can be almost unassailably argued that Mike could have not replied and thus not betrayed his location. Tough cookies, it would have been, and the agent can very well give himself a pat on the back for outsmarting Mike.

The second is stickier. See, sending Mike an email requesting for a video that would be later used as evidence against him is an act that if a law enforcer gets caught doing could just end his career: instigation.

Instigation is when an officer of the law induces a person to commit a crime for which the officer will arrest the person. In People vs. Doria, quoting People vs. Galicia, the court made clear what is in instigation: "The instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal." Further, the court said in no uncertain terms, "It is instigation that is deemed contrary to public policy and illegal."

See, if the NBI agents wished to catch Lazarte for violating paragraph 3 of Article 201 of the Revised Penal Code ("Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals"), by sending an email inducing Lazarte to send back a video believed to be offensive to morals, the NBI agents could very well be guilty of instigation.

Uh-oh. Instigation, ladies and gents, simply means that the NBI performed an illegal act. From there falls down the entire house of cards they'll have built for the Lazarte case.

Flesh Asia Daily's Mike Chanco could very well employ the defense of instigation by the NBI agents.

The NBI would then have to suck his balls and let him walk.

***
Now, let's go past that and assume that the NBI did not bungle that part of the investigation (although it's hard not to believe so, based on the news reports). Let's assume for the moment that the NBI did do a good job of building a case before going to Lazarte's residence.

And so the NBI go and raid the place. But was a raid necessary?

Did the NBI make a determination the likelihood that the Lazarte residence was a place where pornography was produced; that is, was there any indication that scantily-clad women were doing the nasty with Lazarte and his buddies under the glare of spotlights and the glint of camera lenses? Was there any indication that by employing a raid law enforcement agents would catch Lazarte in the act of boinkity-boink-boink-boink with some floozy or other? Was there any indication that without a raid, all the evidence of producing pornographic material would be lost?

It seems to me that the judgment made was faulty -- and this opens the NBI to another charge: excessive force.

Oh yes, ladies and gents, the definition of excessive force is not limited to exceeding the rules of engagement in tactical situation. It also applies to the methods applied in engaging a suspect -- note that I did not say criminal, as an accused is innocent unti proven guilty.

By raiding an ordinary, peaceful home whose occupants were not performing any illegal acts (that is, of course, unless playing Guitar Hero at medium difficulty is illegal), with firearms being waved by intimidating agents -- "this huge NBI person with a bad-ass gun screaming at me" -- the NBI could very well have to plead to a judge to please believe that they did not employ excessive force.

Else, the NBI agents would have to fellate Mike Chanco for a week after letting him walk.

***
Let's go on and assume that a raid was justified (something of a stretch to believe). Let's go through the next motions.

Did the NBI agents identify themselves? Let's assume they did.

Did the NBI agents present the original warrant? Let's assume -- wait, what kind of warrant?

Aha! Yes, folks, there are different kinds of warrants (but they don't include the 90's glam rock band). Two should be mentioned in this case: a search warrant, and an arrest warrant.

Now, did the NBI have a warrant to search the premises? Let's hope so, else the agents would be in hot water for trampling all over Lazarte's house.

Now, did the search warrant include the power to search through Lazarte's hard drive and other storage media?

Some people may consider that semantics, but that is all part of the constitutionally-guaranteed right against unreasonable search and seizure. The law has time and again reminded law enforcers that they can't look through places that their warrants don't cover.

So, did the NBI search through Lazarte's computer without possessing the right to do so?

If they did, uh-oh, anything they'd have found would be inadmissible in court... and the NBI agents would have to rimjob Mike Chanco's ass for a month after they let him go. Worse yet, they can't get out of that jam because they've confiscated the computer -- prima facie evidence, that could be, of illegal search and seizure.

Furthermore, did the search warrant include the power to search through Lazarte's web-based email accounts and his server catalog? If not, the NBI would really get it in the ass for searching beyond what was in their power to search.

(Mike, if you gave your passwords and access to them under duress, they're gonna get it for illegal search and seizure. But you better prove that duress, boy.)

***
Let's go on and assume that the warrant provided for a comprehensive search (of which any prosecutor and defense attorney know all too well is difficult, if not impossible, to word).

We know from the news reports and Mike's account that Lazarte was "invited for questioning" -- a term often mistaken to be a euphemism for arrest, but is so far from arrest than is the truth. For what does invited for questioning mean?

It means, pure and simple, that one is not under arrest. Hell, if one had the cojones, one could tell the cops, Get the fuck out of my house, and if the cops made it an issue they'd be opening themselves to charges of police brutality.

Anyone who is invited for questioning has several rights and choices available, folks.

First, he has the right to refuse the invitation. Babst vs. NIB made it clear that "an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable" -- but note the key words: the person invited may heed or refuse. If the person is not allowed the right of refusal or is intimidated not to refuse, it then becomes an arrest. (We'll get to that later.)

Second, he has the right, if he has not refused, to attend to the invitation at his convenience and schedule. He has the right to say, "I'm busy playing Guitar Hero right now; why don't you go to your office and wank for a while? I'll be there tomorrow afternoon." If he is not afforded his choice of schedule and convenience or is intimidated to accede immediately to the option offered him, it then becomes an arrest. (Later.)

Third, he has the right to attend to the invitation with his choice of transport; he has the right to choose whether to climb in the NBI AUV, take a jeepney to the office, or call Mar Roxas to padyak his way there. If he has not been afforded his choice of travel method, and is made or intimidated to agree to ride the NBI vehicle, it becomes an arrest. (Later!)

The bottomline is this: since Mike was offered an invitation, there should have been choices afforded to him. If there weren't, either by not offering them or by intimidating Lazarte not to make any, the NBI guys could very well be in trouble. If there were, hell, Mike, you stupid SOB.

Now if it were an arrest, Mike should've been apprised of his rights as an accused immediately. This lack, I believe, is why Lazarte is going to win this case... and why I think Mike could very well sue the NBI's collective pants off for bungling this case to hell and back.

***
Some minor details: did the NBI agents immediately secure and put away their weapons after determining that there was no threat to the life of the agents?

If not... you guessed it right, folks -- excessive force, especially if it can be proven that there were no deadly weapons in the immediate vicinity of the suspect.

Also, if Mike was made to "Sit The Fuck Down" in his own house and it can be later shown that he was not under arrest at the time nor was there probable cause to think he was a suspect, the NBI agents open themselves to charges of arbitrary detention. This would be especially true since there were weapons being waved around; evidence that the NBI agents physically touched Lazarte (not that way you're thinking, you perv) by holding him by the scruff of the neck or arms or similar would add to the charge of arbitrary detention -- I think I saw some of that in the ABS-CBN video. Heck, the fact that Lazarte and his brother were herded into the NBI vehicle under duress and threat of violence (real or imagined; remember, the agents were armed and waving their weapons earlier) by the NBI agents make the charges of arbitrary detention even more possible. Adding to that would be whether or not Lazarte felt that they could leave the NBI office at any time; if they did not feel that way, arbitrary detention can indeed be appreciated by a fair-minded judge, under Babst vs. NIB precedent.

***
Certainly we can infer that there was no warrant of arrest issued, as Lazarte was invited for questioning instead of being arrested.

Let's assume that the invitation for questioning is later found to be valid. Now even before questioning begins, even if Lazarte does not need to be apprised of his Miranda rights (a gray area, you see) because he is not under arrest (but which he can later claim to be, given the circumstances; courts have quite often said that an "invitation for questioning" in some cases was tantamount to an arrest), the NBI still needs to ask Lazarte whether or not he needs a lawyer. If Lazarte wants to waive his right to counsel, he must do so in the presence of a lawyer and do this in writing.

The rationale is simple: invitations for questioning are supposed to be for witnesses, not suspects. Witnesses answer questions leading to the arrest of the suspects; suspects cannot be questioned without the right of counsel because of the constitutional right against self-incrimination.

Let's assume that Lazarte was not apprised of his right to counsel. Now, this means that any answer that Lazarte gives to a question the NBI put to him is inadmissible as evidence, because it was illegally acquired. Oh yes, that simple. That means that the NBI cannot use his answers as evidence to charge Lazarte with any crime. If the NBI persist in charging Lazarte with violation of Article 201 based on his answers, the NBI open themselves to charges of malicious prosecution. Charging the NBI with illegal arrest might be possible, but some legal wrangling will be involved.

Furthermore, not only was the evidence illegally acquired, the NBI would have violated Lazarte's right against self-incrimination... and folks, a law enforcement agency violating a basic constitutional right? Oh boy. The NBI's going to have to shove their billysticks up their asses in penance, and Mike would have just cause to spank them bad boys.

Any of those answers that we hear from the media can't be used as evidence (like that it was a "dance commander" who sent the videos), oh no. This, simply because Lazarte was charged for Article 201 after being questioned in an "invitation for questioning" venue and not an arrest. Remember this, folks: self-incrimination is a guaranteed against by the constitution, and that any violation of it makes the evidence inadmissible.

Still assuming that Lazarte was not apprised of his right to counsel, the NBI cannot use any of Lazarte's answers in building a case against anyone else, as the evidence was illegally acquired. Worst case scenario? The investigation is dropped... not unless the NBI wants the possibility of facing an inquiry before the Commission on Human Rights, possibly wearing loincloths and carrying flagella to whip themselves.

Now, if Lazarte waived his right to counsel properly, well, Mike, you gotta start learning how far you can bend down.

***
I guess I'm fairly convinced that there were so many procedural lapses committed by the NBI that I guess a number of agents could be made to pay for it, and dearly too. That's what civil rights are all about. See, if shortcuts are taken and allowed to be taken, if we play fast and loose with civil rights, we run the danger of sending innocent people to jail.

Even if out of a thousand convictions only one of them was of an innocent man, that would still be a grave injustice.

Bottomline, then. Shortcuts, bad. Lapses, bad. By the book, good.

That is the line where rights meet the law, and thus the ends of justice are served.

***
Here's a little beef with Maan and her colleagues: lady, do you not know that there is no such thing as a "pornographic website" in the Philippines, as there remains no legal definition of "pornography" in our jurisdiction? Remember, no law has been passed defining the scope and extent of what pornography is.

You could have said "a website" without any qualifications, like what GMANews.tv did.

Not that reporters don't slip in exaggerations here and there add to ratings and readership, of course *wink*. Yup, sensationalism is one of them ways to catch the attention of the general public, but only tabloids do that, and not the majors.

Susme. You might be cute, Maan, but I'm not sure if I approve of your reportage of the event.

***
Mike, thanks for the hat tip, by the way. I hope you will bear this post out; pardon me if I sounded harsh, won't you? On the other hand, I wonder what you meant by "highly entertaining" about the previous post and the others mentioned? (Heh heh.) By the way, one of them stalkers claims to be pally with you -- full disclosure of course, so that we all know for certain that they are irrelevant. To my opinion on this issue involving you, that is. They are irrelevant.

Oh, and pardon this blog layout, folks. It needs fixing, but I need time. Later, all.