A COLISÃO ENTRE A PRISÃO EM FLAGRANTE E O DIREITO FUNDAMENTAL À INVIOLABILIDADE DE DOMICÍLIO

Abstract

This work aims to analyze domicile inviolability in cases of flagrant crime in permanent crimes, specifically regarding drug trafficking, which does not receive due attention from the national legal system. This analysis will address objective and subjective elements that are used to, in theory, legitimize the exceptional violation of the home, which were reformulated after the establishment of Theme No. 280 of the general repercussion system, judged by the Federal Supreme Court in the trial of RE 603.616/RO. To carry out this research, the hypothetical-deductive method was adopted, which consisted of raising hypotheses and, consequently, their application to search for truths, even if provisional, through the falsification of hypotheses. In the end, it was concluded that the correct measure for police officers to take when faced with a situation of flagrant crime in permanent crimes, is to request a search and seizure warrant through the police authority, since reasonable grounds for entry into the subject's domicile are only justified when there is a risk of delay in the sense that evidence of the crime will be tainted. Additionally, it was found that there is an implicit flaw in the resident's consent to authorize entry into their home due to the environmental intimidation to which the agent is subjected.