BUSCA PESSOAL E A “FUNDADA SUSPEITA” NO PROCESSO PENAL BRASILEIRO: Os limites entre a legalidade e a pesca probatória

Abstract

This study explores and examine personal search, named by “stop and frisk” and regulated by art. 244 of the Code of Criminal Procedure, as well as its essential requirements that attest and allow the legality of the conduct. Therefore, the term “founded suspicion” is problematized, an essential element for the validity of the approach, as well as the absence of sufficient guiding elements in the criminal procedural standard to indicate which conducts would fit into the aforementioned requirement. In view of this, there are several imbroglios caused by the lack of assertiveness of the normative type, resulting, consequently, in a series of criminal procedural mishaps, such as a compilation of null criminal actions due to the illegality of the evidence obtained in the absence of essential requirements for approach’s origin. Seeking to remedy the normative elucidative gap, which doesn’t provide any indication of what the necessary “founded suspicion” is, a set of jurisprudential understandings serve as a paradigm to embase police conduct, especially Habeas Corpus n. 158.580, which determined conducts that wouldn’t characterize well founded suspicion, especially when based on subjective elements and the individual perception of the police force. Thus, this work also argues about the indispensability of normative delimitation on the topic, not restricting this task solely to unpacified jurisprudential understandings, as occurs today.