Os desafios à inviolabilidade do domicílio no flagrante delito de tráfico de drogas

Abstract

The principle of the inviolability of the domicile, provided for in article 5 of the Federal Constitution, constitutes one of the fundamental rights established in the Brazilian legal system. However, clause XI brings exceptions to this right. Among these exceptions, the possibility of entering another's domicile under the pretext of ceasing a crime is observed. However, the term “caught in the act” itself carries a subjective burden when related to practical life, especially regarding the crime of drug trafficking, particularly in its permanent modalities. It is not simple for a police officer to discern whether a crime is taking place inside a residence or not, and, at the risk of being held civilly and criminally responsible, caution must be adopted to understand under which justification entry will be made. In 2015, the Supreme Federal Court defined Thesis number 280 and established that, for unauthorized home violation, prior just cause is required, even if the justification is provided afterward. However, the subjective burden of the ruling has kept discussions alive regarding various concrete cases. Thus, through a qualitative approach method, utilizing bibliographic research, current legislation, jurisprudential analysis, graphical analysis, the research work aims to analyze the current positions of the Higher Courts regarding some specific cases, as well as to investigate if there is a solution to repetitive demands concerning similar factual situations that reach the Courts. The discussion on the topic is necessary because it is a contemporary and relevant situation in the Brazilian scenario, especially in cases of drug trafficking, considering that this crime is one of the most common in Brazilian judicial proceedings