On suspicion of drug trafficking, Brazil’s justice ruled that while a personal search is legal, entering a home without a warrant or consent from the suspect, is unlawful. The defendant was acquitted of his charges as the evidence was found unlawfully.
In São Paulo, a decision by the Superior Court of Justice (SCJ) found that evidence that was collected from a suspect’s home without their authorization or a judicial warrant is invalid.
On September 26th, 2023, the SCJ ruled that if a person is suspected of drug trafficking and “smells of marijuana,” then a personal search for evidence by police is justified. However, if the search does not provide evidence, the police are not authorized to search the person’s house without a judicial warrant.
Even authorization by another resident in the home is not justified if they are not the suspect.
The case refers to a man accused of drug trafficking who was approached by police after detecting the smell of marijuana. They conducted a personal search on him. Nothing illegal was found, which then prompted a house search without a warrant. His mother consented to the house search, but the suspect did not.
The personal search was legal as the suspect had been investigated by the police prior and there were suspicions of drug use, which the suspect had confessed to. However, entering the house without consent or a court warrant is not legal.
Brazilian police searching homes without a warrant is not so rare
The police did find evidence of drugs — approximately 3 grams of cocaine and 2 grams of marijuana were reported in the house. But as it was obtained unlawfully, the charges against the defendant were dropped.
Minister Reynaldo Soares da Fonseca of the SCJ granted habeas corpus, a constitutional right for someone who is imprisoned to report wrongful detention or abuse of power.
Minister Reynaldo Soares da Fonseca recognized the illegality of the evidence and acquitted the defendant of any charges. He explains in his decision that there is a necessity for concrete evidence that would justify entering a home and invading the right to privacy.
“I reiterate that nothing illegal was found with the personal search, therefore not justifying entry into the person’s home,” concluded the judge.
Thus far, preliminary data from a survey conducted by the Institute of Applied Economic Research (IPEA), a government-led organization that provides support for public policies, showed that around a third of those who were prosecuted for drug trafficking in Brazil had their homes entered by police without reported consent or warrants.
