Supreme opposes STJ and highlights relevance of police approach

Unanimously, the 2nd Panel of the Federal Supreme Court (STF) decided on the legality of a police operation that, based on a “suspicious attitude” during a vehicle stop, progressed the investigation and identified the crime of drug trafficking by carrying out a raid on the suspect’s home. .

In the decision, the case’s rapporteur, minister Gilmar Mendes, also highlighted the importance of police approaches to fighting crime.

The operation was questioned by the defendant’s defense, who requested the nullification of the sentence based on the understanding of the Superior Court of Justice (STJ) that considered the so-called “personal search” “illegal” on the grounds of suspicious behavior.

In the decision, also unanimously, the STJ said that police approaches of this type are “a reflection of structural racism”.

For the accused’s defense, the police officers had acted illegally by entering the suspect’s house after the vehicle stop without a search and seizure warrant.

When judging the action last week, Minister Gilmar Mendes said that the lack of a warrant is made up for by well-founded police suspicion.

“Now, regardless of not having a search and seizure warrant, as we know, the crime of drug trafficking is of a permanent nature, so that the state of being caught is constant, and the arrest in the act follows the rule set out in the art. 303 of the CPP […] On the other hand, according to art. 5th, XI, of CF/88, the inviolability of the home is excepted in the case of a flagrant crime. Therefore, there is no need to speak of any nullity, considering that the defendant was in flagrante delicto”, says an excerpt from the minister’s report.

The accused was approached on June 23, 2020 by military police officers who were carrying out patrols in the Community of Rosa Selvagem, in Recife (PE).

On that occasion, while investigating the regularity of the motorcycle driven by the accused, the police went to the suspect’s residence to confirm the ownership of the vehicle which, according to the suspect, belonged to his sister.

At the scene, the accused’s sister denied that she owned the vehicle and had authorized the police to enter the residence.

During the search of the house, 17 rocks of crack, 2 wraps of marijuana, 2 precision scales and a balaclava were found, as well as a loaded 38 caliber revolver.

“There is no illegality to be recognized in this way, neither in relation to the initial approach, nor in relation to entry into the appellant’s home […] If a State agent is unable to carry out an approach on public roads due to suspicious behavior on the part of the target, such as escape, gesticulations and other typical reactions, already known by science applied to police activity, there will be a serious compromise in the exercise of public security”, he says. another excerpt from the minister’s decision.

The report presented by Gilmar Mendes was accompanied by the votes of ministers André Mendonça, Edson Fachin, Dias Toffoli and Nunes Marques.