If evidence against a person is obtained by the police from a home invasion made without authorization or a court order, it ceases to apply. This was the unanimous understanding of the Sixth Panel of the Superior Court of Justice (STJ) in a decision published on September 22nd.
According to the collegiate, the entry of the police into a home can only happen for strong reasons that justify it, not just “a mere suspicious attitude” or “police distrust”.
The position was also based on another determination by the same magistrates, made in March of that year in habeas corpus 598,051. It defines that when there is no court order, the entry of police into the house can only happen after authorization from the person who resides there, recorded in audio or video, to reduce the risk of an unauthorized invasion.
“In a country marked by high social and racial inequality, ostensible policing tends to focus on marginalized groups and considered potential criminals or usual suspects,” says the recent decision, criticizing “subjective factors” used as criteria for police actions, “such as age, skin color, gender, social class, place of residence, clothing”.
For Dimitri Sales, president of the State Council for the Defense of Human Rights of São Paulo (Condepe), the understanding of the STJ “is very important because it sheds light on a practice that mainly affects young people, blacks and residents of the suburbs”. In addition, Sales points out, the measure “re-establishes legality”.
However, he ponders, the decision “does not represent a change in behavior, neither of the security agents, nor of the judiciary: it is a beacon, still guiding that we can really fight racism and establish respect for human dignity.”
Having as rapporteur the minister Antonio Saldanha Palheiro, the determination of the STJ, which sets precedents, focuses on a specific case that took place in Paraná.
Under the lawsuit, anonymous allegations that a person was growing and trafficking marijuana led police to the scene. There, they would have entered the suspect’s neighbor’s house and then, over the wall, into the defendant’s residence. They would then have seized marijuana plants and a precision scale.
The magistrate argues that there is no justification for forced entry into households, as the police should have requested a court order for search and seizure in view of the complaints. Hence, the cancellation of evidence.
“The absence of justifications and safe elements to legitimize the action of public agents”, says the rapporteur, “may weaken and irritate the right to privacy and inviolability at home, which protects not only the suspect, but all residents of the local”.
Edition: Anelize Moreira