OS PARÂMETROS DA RELATIVIZAÇÃO DA INVIOLABILIDADE DOMICILIAR PARA A LICITUDE DO INGRESSO POLICIAL EM RESIDÊNCIA SEM MANDADO JUDICIAL: ANÁLISE DO JULGAMENTO DO HC 598.051 PELA 6ª TURMA DO STJ

Abstract

This monograph descants on the fundamental right of home inviolability, especially the paradigmatic innovation brought by the Sixth Panel of the STJ in the judgment of Habeas Corpus 598.051/SP. The problem lies in knowing up to what point it is constitutionally admissible for police officers to enter a residence without a warrant in the event of flagrante delicto and the consent of the resident. Due to the cross-cutting nature of the theme with the fundamental rights of freedom and inviolability of the home, as well as the relevance to forensic practice and the topicality of the decision, the aim is to present and analyze the parameters consolidated by the Court to control the lawfulness of police entry in relation to the validity of the resident's consent and the well-founded reasons for a flagrante misdemeanor. In order to understand this decision, are addressed here the nature of home inviolability, the concept of home and the constitutional exceptions present in article 5th, item XI, including the doctrinaire and jurisprudential view. Next, the Fruit of the Poisoned Tree Theory is related to the illicit violation of the home and the decision of Extraordinary Appeal 603.616/RO by the Federal Supreme Court and its consequences are presented. Finally, the Habeas Corpus 598.051/SP and its five theses are analyzed, concluding that the resident's written authorization and the audio-video recording of the whole persecution activity protects the home and the police officer from allegations of abuse of authority, as well as it is reasonable to demand the urgency of the police intervention in the permanent flagrante. In this sense, the hypothetical-deductive approach and the techniques of bibliographic and documental research are used, through the examination of doctrinaire works and scientific articles, as well as the analysis and interpretation of the Federal Constitution, the infra- constitutional legislation and the jurisprudence related to the matter.