Personal search without a judicial warrant

just cause, structural racism and the Public Defender’s role in the promotion of human rights

Abstract

In April 2022, the 6th Courtoom of the Superior Court of Justice, when deciding the Appeal in Habeas Corpus n.º 158.580/BA, established an important jurisprudential understanding about the personal search without a judicial warrant, provided for in the article 244 of the Code of Criminal Procedure, so that any other different interpretations were undoubtedly overcome. The decision asserted the need for the existence of well-founded – and not mere – suspicion in order to proceed with the measure, necessarily related to the possibility of possession of objects that constitute the corps delicti of the crime. Still, the rapporteur's vote focused in detail on the issues that permeate police approaches and structural racism, proposing an important reflection. By themselves, personal searches violate fundamental rights to privacy, intimacy and even freedom, even though briefly. However, when they are not duly justified and are based on subjective and generic criteria, they serve as propagating instruments of structural racism, especially against young black people from the peripheries. Therefore, it is essential to stop and reject these behaviors. The analysis of this judgment is extremely important for operators of the Law in general, deserving special attention with regard to the work of the Public Defender, which has the constitutional mission of promoting human rights. Thus, as conclusion, considerations will be made about the agency's performance in combating not only illegal personal searches, but structural racism in general.