STJ releases PCC chief caught with cocaine: inappropriate police action

Minister Sebastião Reis Júnior, of the Superior Court of Justice (STJ), ordered the release of Leonardo da Vinci Alves de Lima, Batatinha, considered one of the heads of the criminal organization Primeiro Comando da Capital (PCC). In response to a request from habeas corpus of the defence, the magistrate considered the evidence against the drug dealer to be null as he considered the police’s approach “invasive”.

The annulment of the conviction is the result of a change in the understanding of the STJ which, in May 2022, defined that the so-called personal search – a practice popularly known as “magazine”, “enquadro”, “general”, among others – carried out by agents of security is illegal if it is carried out under the allegation of suspicious behavior or even based on anonymous denouncements.

As shown by People’s Gazettethe measure, taken by the STJ under the allegation of combating “structural racism”, may result in the attenuation of the preventive conduct of the police forces, causing various damages to security.

How was the police action

Batatinha was sentenced to more than 10 years in prison after being caught with two kilos of cocaine in São Paulo, with a final judgment in March 2022. According to the records, on the day of the arrest, he came across a Military Police patrol , he climbed onto a sidewalk with his motorcycle, appearing nervous, which motivated the agents to approach him.

When searching him, in addition to two kilos of cocaine, the agents found a cell phone, which Batatinha tried to break, and a little over a thousand reais. The dealer then ran away and was arrested.

Even with the end of the process, the defense appealed to the STJ claiming that the police approach would have been inadequate for not presenting the just cause provided for in article 244 of the Code of Criminal Procedure. For the defense, there were not enough elements to justify the personal search and, therefore, the police action would have been illegal.

Minister Sebastião Reis Júnior accepted the thesis of Batatinha’s lawyers, annulling the evidence against the drug dealer. For this, he cited another decision of the court itself that the “perception of nervousness on the part of public agents is endowed with excessive subjectivism and, therefore, is not sufficient to characterize the well-founded suspicion for the purposes of personal search, measure invasive that requires more than mere distrust founded on intuitive elements”.

The circumstances against Batatinha (having two kilos of cocaine, trying to escape or trying to erase evidence) were not taken into account by the minister when analyzing the case.