STF and STJ annul serial tests and make it difficult to combat trafficking

Summary of this report:

• A series of recent decisions by ministers of the STF and STJ that demonstrate greater tolerance for drug trafficking annulled various evidence of drug trafficking crimes and returned convicted criminals to the streets, some of them drug faction leaders.
• New interpretations by the higher courts have had direct impacts on public safety and have especially jeopardized the fight against drug trafficking. For specialists, legal uncertainty for police officers grows at an unprecedented scale.
• In addition to annulling evidence, understandings that are largely restrictive of police approaches have made personal searches, an important resource for locating drugs, weapons and other illicit purposes, unfeasible.

In early June, the 2nd Panel of the Federal Supreme Court (STF) decided to annul the seizure of 695 kilos of cocaine found by the Federal Police (PF) in the Port of Itaguaí, in Rio de Janeiro. The location of the narcotics was possible due to an anonymous tip received by the police in operation, which also arrested two drug dealers who were at the scene.

But the ministers, unanimously, invalidated the evidence on the grounds that the police entered the premises without a search and seizure warrant – as a result, the two traffickers were cleared of the crime of drug trafficking.

Last month, the Superior Court of Justice (STJ) decided to acquit a man convicted of drug trafficking on the grounds that the criminal’s confession to agents about where he stored 257 pins of cocaine had been made under “police stress”. and, therefore, could not be considered to prove the commission of the crime. It is worth mentioning that there was no record of torture or any type of abuse by the police in the case in question.

Decisions like this are nothing new and are part of an expressive movement by high court magistrates to repeatedly create obstacles in the fight against drug trafficking. These measures, in practice, translate into successive invalidations of evidence, the release of criminals caught in the act with vast amounts of narcotics and the creation of unprecedented restrictions on police activity.

And, logically, the consequences are not restricted to the processes that are being processed in the high courts, since the understandings must be followed by all the lower courts, implying dramatic consequences for public safety throughout the country.

For example, in March of this year the Court of Justice of Mato Grosso do Sul (TJ-MS) acquitted a man who confessed to storing nothing less than two tons of narcotics at your residence. The judges’ argument was that the fact that there was an anonymous complaint does not constitute well-founded suspicion and, therefore, would not legitimize the entry of the police into the house without a court order – an understanding that is very similar to that used in the recent decision of the STF mentioned at the beginning of the report. .

“In recent years we have seen that the STJ in particular has given a restrictive interpretation to the legal concept, stipulated in the Code of Criminal Procedure (CPP), of well-founded suspicion for an approach and arrest in flagrante delicto. Interestingly, we see these restrictive interpretations more present in flagrante delicto of drug trafficking”, says the prosecutor Bruno Carpes, member of the nucleus of research and analysis of criminality of the School of Advanced Studies in Criminal Sciences.

STJ decision that restricted approaches seriously weakened the fight against crime

A series of court decisions that have invalidated seizures of drugs and other illicit acts and, as a consequence, annulled convictions, are based on a decision handed down last year by the Sixth Panel of the STJ, which created restrictions on police approaches.

Article 244 of the CPP determines that the personal search does not depend on a court order in cases where there is “well-founded suspicion that the person is in possession of a prohibited weapon or objects or papers that constitute evidence”.

Under the allegation of curbing “structural racism”, however, the STJ defined that personal searches carried out by security agents are illegal if they are carried out under the allegation of a suspicious attitude or even based on anonymous complaints. As an example, earlier this month, STJ minister Sebastião Reis Júnior used this understanding to exonerate a PCC drug lord sentenced to ten years in prison.

The minister understood that the police approach, which resulted in the location of two kilos of cocaine with the dealer, was “invasive”. According to him, there were not enough elements to justify the personal search of the boy and, therefore, the police action that located the drugs would have been illegal.

According to the records, on the day of the arrest, when he came across a PM patrol, the drug dealer got on a sidewalk with his motorcycle, appearing to be nervous, which motivated the approach. During the personal search, the boy even broke his cell phone to try to delete messages about the activities of the criminal faction to which he belonged. Even so, for the magistrate, the police action was illegal, and the drug dealer was cleared.

New interpretations are heading towards making police approaches unfeasible, says jurist

Fabrício Rebelo, researcher in public security and founder of the Center for Research in Law and Security (Cepedes), explains that although police approaches have always been understood as valid as long as the police officer has a well-founded suspicion of committing a crime, some magistrates proceeded to invalidate most of the evidence collected by agents on the streets.

“Initially, some began to understand that if the individual gets nervous [ao se deparar com a presença policial], or tries to break away from the garrison, is no longer considered a well-founded suspicion. There it was extended that if he runs it is not either. If he runs away and takes shelter in a house, there is still no grounded suspicion”, explains Rebelo.

“So, practically everything that the police use or has always used as a reasoned suspicion for an approach began to be invalidated. This sequencing of new understandings in relation to the well-founded suspicion has been greatly weakening police action”, declares the researcher. “If this continues, in the future we will no longer have any situation that is understood as valid to authorize an approach”, he points out.

The new way that Justice has seen the legality of police approaches has also been reaching those that are made in suspicious vehicles and can inhibit one of the most effective resources of the police forces to identify large amounts of drugs, in addition to firearms and other contraband objects. .

At the end of May, the São Paulo Military Highway Police celebrated the second largest drug seizure in the history of the corporation – 12 tons of narcotics were removed from circulation. Strictly following the new understanding, however, such an apprehension would not be possible: it was precisely the suspicious behavior of the driver when he came across the vehicle that led to the distrust of the police and, finally, culminated in the approach.

Controversial decisions involve cancellation of André do Rap’s tests and return of helicopter to traffic

A sequence of recent decisions by STF and STJ ministers led one of the main leaders of the PCC, known as “André do Rap”, to leave prison and take back his assets that had been seized by the police – which included a helicopter owned by the drug dealer. valued at R$ 7.2 million, which was being used by the government of São Paulo to transport organs, and a boat estimated at R$ 6 million.

Recently, on April 12, the STJ decided to annul evidence collected by the police and close the investigation against André do Rap, whose sentence exceeded 25 years in prison. The rapporteur’s justification, unanimously supported by the other justices, was that the police action would have been illegal because the police carried out a search and seizure, collecting evidence that incriminated the drug dealer, when the court order authorized only arrest.

It was in this decision that the ministers ordered the Civil Police of São Paulo to return all of the drug dealer’s assets, including the aircraft, which in the week before the return had carried a heart for transplantation in a child. The decision of the STJ determined that the helicopter was returned even before the publication of the judgment with the ministers’ decision, which prevented the Public Ministry from appealing the return order.

It is worth remembering that, in 2020, the STF granted André do Rap habeas corpus, returning the drug dealer to the streets. Faced with a strong wave of criticism of the Court, the decision was revoked. However, by that time the criminal had already been released and was no longer captured.

“These new interpretations by the superior courts are of great concern to both national security and public safety more generally. This has also been hampering the work of the police, who are authorities that need legal guidelines to provide legal security for their actions and for citizens”, says Bruno Carpes.

For the prosecutor, these changes began to intensify with the entry of new ministers who, as lawyers, prosecutors or judges, maintained identification with guidelines such as the decriminalization of drugs, with the understanding that the repression of drugs generates more costs than what benefits to society. “However, I remind you that the Federal Constitution, in its art. 5, frames the crime of drug trafficking as equated with heinous. That is, the original constituent determined to all public bodies – which obviously includes the Judiciary – that the crime of drug trafficking be treated with greater severity, with greater sanctions”, he emphasizes.