Busca pessoal, policiamento e devido processo legal: uma reflexão a partir do RHC STJ n.º 158.580

Abstract

This monograph aims to investigate the parameters of personal searches (colloquially known as "frisks"; "pat-downs" or "stops") in light of RHC STJ 158.580/BA. This is a routine search carried out by police agencies from a preventive perspective, acclaimed as an indispensable mechanism to intimidate potential criminals, as well as to convey a sense of security and ensure public order. However, criminal procedural legislation characterizes personal searches as a probative instrument that presupposes the presence of indications of criminal conduct, and there is no regulation of preventive personal searches. Given this dichotomy, using exploratory research through a combination of normative, doctrinal, and documentary sources, this work verifies that personal searches practiced as "routine" overwhelmingly affect socially marginalized individuals, even if they do not present indications of criminal conduct, which runs counter to the penal and constitutional model founded on the principles of strict legality and harmfulness. Furthermore, empirical data demonstrates that, in addition to being ineffective for reducing crime, excessive police approaches contribute to a reduction in institutional trust within a context whose regulation is imprecise and the control is deficient. It is concluded that to ensure greater probative reliability and maximum effectiveness of fundamental rights, personal searches must be linked to the conditions established in criminal procedural legislation, as well as substantive ties of the democratic Rule of Law, requiring the individualized registration of the diligence, the improvement of the instances and methods of police activity control.