O crime permanente de tráfico de drogas : uma análise à luz dos requisitos estabelecidos para ingresso em domicílio sem mandado judicial.

Abstract

The Federal Constitution of 1988 mainly protects the integrity of the private life and the intimacy of each individual and, therefore, it introduced in its article 5, XI, the protection of the property, claiming to be an inviolable shelter and protecting it so that no individual can enter it without the consent of the resident, except in exceptionally foreseen situations. Thus, the Constitution itself determined which are the situations that allow third parties to enter the household, including the consent of the resident, the case of flagrante delicto or by court order. In the crime of drug trafficking, some conducts described by law are characterized as “permanent”, which means the situation of flagrante delicto occurs while the crime is being committed, and flagrante delicto may occur at any time. As a result, it was recognized the need to determine when the forced entry into the home could occur in the case of drug trafficking, considering that most of the time the drugs are in storage inside the residence, requiring the entry of the police to apprehend them. of the illicit. Thus, after disagreements regarding the understanding of the constitutional text and correct interpretation, the Federal Supreme Court established the understanding that, in cases of flagrante delicto, the evidence (drugs, in this case) collected inside the residence will only be lawful when probable cause is present. Nonetheless, in criminal practice, difficulties arose to differentiate and characterize the probable cause, as well as to prove them by state agents, which resulted in the illegality of the evidence collected. Therefore, the recent understanding given by the Superior Court of Justice was analyzed, in which requirements were established to prevent evidence from being determined to be illicit and to avoid further abuse by public officials. The Superior Court of Justice analyzed the cases in which certain conducts will provide probable cause and determined requirements for admission with the consent of the investigated, differing from the understanding of the Federal Supreme Court. In view of this, the issue was decided on with the central problem of analyzing the requirements established by the Superior Courts for the forced entry of police officers into the home, without judicial authorization, in cases of suspected trafficking. The Superior Court of Justice analyzed the cases in which certain conducts will be considered well-founded reasons and determined requirements for admission with the consent of the investigated. Thus, for the elaboration of the study, bibliographic and exploratory research were used, at which time doctrines, jurisprudence and specific legislation were interpreted. To this end, a study was started from the Federal Constitution, to understand fundamental rights as a form of state coercion in the principle of home inviolability, and then analyze criminal procedural issues on the permanent crime of drug trafficking. Subsequently, the central theme was entered, analyzing separately all the requirements imposed by the Superior Court of Justice, examining the understanding of the Supreme Court in relation to them. Finally, it was analyzed the possibility of applying the requirements in the real case and how they will have an impact, concluding that the Supreme Court needs to position itself in order to determine that consent cannot be applied to police officers, as well as the obligation to regulations to validate anonymous and well-founded complaints.