O fenômeno da serendipidade nas interceptações telefônicas e nas buscas e apreensões: uma análise sobre a admissibilidade das provas descobertas ao acaso

Abstract

Serendipity has been much discussed in recent years by doctrine and jurisprudence. The central debate is based on the admissibility of the randomly found evidence that refers to crimes that were not previously the subject of criminal investigations or instructions. The situation gets even stronger when this context occurs through the means of obtaining evidence, especially in the search and seizure and telephon interception. Such a choice came about because both institutes alone already invoke the discussion of clash of constitutional principles, which is further accentuated when it comes to discussing the use of random evidence gathered through them. In addition, the paper, with the aim of analyzing the admissibility of this evidence exposes the controversial doctrinal currents existing on the subject, reaching the conclusion that the original basis of this discussion is in the conflict of two constitutional guarantees: the inviolability of the domicilie and the telecommunications. Against this backgroud, the study proposed to find the solution in the face of constitutional upheaval, finding unison tools for the resolution of this conflict, such as using the proportionality criterion and noting that the only current compatible with this mechanism is the moderate one.