SUMMARY
This research aims to carry out an analysis regarding the procedural admission of evidence obtained without a court order, on the cell phone seized due to a flagrant arrest, considering the constitutional guarantees of privacy and intimacy as limits to this collection of evidence.
To this end, jurisprudential and doctrinal positions, as well as criminal and constitutional procedural legislation relating to the topic, will be analyzed through bibliographical research.
We will seek to verify the possibility of relativizing the right to privacy and intimacy, and the admissibility in proceedings, of the evidence collected there.
Current technological advances and the constitutional protection given to privacy and intimacy in the face of telephone devices that increasingly include more applications and information will be taken into account, which consequently must also be increasingly protected.
Key words: Access. Flagrant. Crime. Proof. Court Order. Prison. Privacy. Intimacy. Relativization of intimacy. Cell phone.
1. INTRODUCTION
Technology is increasingly present in everyday life. Every day, more of human existence is linked to technology. What happens is that the technology can end up being used for illicit purposes, especially in the case of cell phones, in which traces and evidence of criminal activities could also be located.
Currently, these devices are no longer restricted to telephone communications. They are true portable computers, capable of performing various functions, and gradually, more data and private information are entrusted to them, which may even contain proof and evidence of illicit activities.
Thus, the growing number of cell phone devices, together with technological development, which constitutes and adds new elements to society, also becomes an interest of law. And more significantly, regarding privacy. Seeking every day to protect privacy and intimacy on cell phones, but also analyzing such protection in the face of illicit and criminal use of these devices.
In this context, the core of this work is to understand, in cases of arrest in the act, when, with these devices remaining seized, whether the evidence collected from them, without a court order, could be used in criminal proceedings.
This study will be developed using the methodology of bibliographical research on the subject.
It should be noted that the aim of the research is not to exhaust the topic, but rather to provide a greater understanding of the legal or illegal evidence on the device in order to enable a better-founded conclusion, given the right to privacy, but also considering the hypotheses of relativizing these rights, aiming to guarantee other fundamental rights.
2 DEVELOPMENT
The collection of evidence on a cell phone, without a court order, because it was seized due to being caught in the act, is a controversial topic.
In 2007, the Superior Court of Justice (STJ) judged Habeas Corpus (HC) 66,368, against ruling 0201607-4 of 2006, of the Court of Justice of the State of Pará (TJPA), which had denied an order previously filed in favor of patients , seeking the revocation of the preventive detention and the excavation of the evidence, on the grounds that it was collected without judicial authorization on the seized cell phone, and was therefore illicit.
On this occasion, the fifth panel of the STJ maintained the arrest ordered by the TJPA and decided not to excavate the evidence, arguing that the collection of evidence from devices seized in a flagrant situation is the duty of the police authority.
Given this verdict, the defense then filed HC 91,867 in April 2012, before the Federal Supreme Court (STF), questioning this decision of the STJ, under the same allegation of illegal evidence, seeking the revocation of the arrest.
The STF maintained the same understanding as the case at hand, considering the collection of evidence on the cell phone as the duty of the police authority, maintaining the arrest and not excavating the evidence.
It turns out that with the judgment by the STJ of a similar case in April 2016 in HC 51.531 of the State of Rondônia, the topic gained an even greater dose of controversy, as it considered the collection of evidence on the telephone device as essential for a court order, for violates the privacy of the individual. The understanding in this case was in disagreement with the previous understanding issued by the same court in HC 66,368.
We have then seen jurisprudential disagreement within the STJ itself and between the STJ and the STF. It turns out that both HC 91,867 and HC 51,531 are decisions of specific cases, which serve as a jurisprudential basis in other processes of similar content, but which can be very relevant for the judgment of similar cases, especially in the face of a technological scenario as dynamic as the current one.
In order to better understand this discrepancy, the basis of these decisions will be studied, starting with the STF’s reasoning in which it expressed the duty of the police authority to collect evidence, supported by the CPP.
Firstly, it is worth highlighting that from the event of a criminal offense, the State, within what the law determines, has the power and duty to take the measures that the case requires. Article 6,III, of the CPP says that “As soon as it becomes aware of the commission of the criminal offense, the police authority must: collect all evidence that serves to clarify the fact and its circumstances” (BRASIL. CPP, 1941)
The conviction of this duty was defended by the TJPA in case 2006/0201607-4, which is why the defense filed Habeas Corpus number 66,368 before the Superior Court of Justice, claiming that the evidence collected would be illicit, considering that the records of calls on the co-defendant’s cell phone would have been checked by the police without judicial authorization.
It should be noted that the device contained records of calls between patients and the author to kill the victim and in this process, under the report of Minister Gilson Dipp, the fifth Panel of the STJ unanimously decided that:
Such conduct, however, does not constitute a breach of telephone confidentiality, since only the last calls made were investigated, as well as those received by the seized cell phones, the records of which were recorded on the devices themselves. Furthermore, in accordance with the provisions of article 6, sections II and III, of the Code of Criminal Procedure, it is the duty of the police authority to seize the objects that are related to the fact, which, in the present case, meant knowing whether the data contained in the agenda of cell phones would have some relationship with the incident under investigation» (BRASIL. STJ, 2007).
The Order was denied and the defense pretexts did not succeed. For this reason, the defense filed another Habeas Corpus number 91,867 before the Federal Supreme Court (STF) against this STJ decision, once again questioning the illegality of the evidence, given that the cell phone was accessed by the police without a court order.
In this Habeas Corpus, reported by Minister Gilmar Mendes, the second Panel of the STF, also unanimously decided in 2012 not to recognize the illegality of the evidence and maintained the same understanding as the STJ, according to which it is even the duty of the police authority to collect the evidence of the criminal offense, according to the excerpt of the decision below:
Well then. It cannot be forgotten that the police investigation is an administrative, inquisitorial and preparatory procedure, whose main purpose is to collect information regarding the authorship and materiality of the crime, in order to support the filing of possible criminal action. Hence, art. 6 of the CPP that the police authority has the duty to collect material proving the commission of the criminal offense, requiring it to determine, if applicable, that a corpus delicti examination be carried out, seize objects that are related to the criminal act, collect evidence that serves to clarify the fact and its circumstances, listen to the offended party, listen to the accused, among other steps. (BRAZIL. STF, 2012).
When carrying out a search in the electronic diary of duly seized devices, an indirect material means of evidence, the police authority, fulfilling its mission, sought, solely, to collect elements of information capable of clarifying the authorship and materiality of the crime.. (BRAZIL. STF, 2012).
It can be noted, therefore, that both the STF and STJ emphasized the duty of the police authority to collect elements related to the criminal offense, which was important in this case, access to the telephone device.
The STF considered the telephone device seized there, as an indirect means of proof and in this case, the police authority, when accessing its telephone book, only fulfilled its responsibility to collect elements of information, with the aim of clarifying the criminal offense, also considering there is no illegality as can be seen below:
In this factual context, I believe that there is no illegality in the police authority’s procedure, especially because this verification allowed the initial guidance of the investigative line to be adopted, as well as making it possible to conclude that the devices would be relevant to the investigation. In other words, the police authority, upon taking possession of the device, only sought to obtain from the seized object, as it was reasonable to obtain them, the elements of information necessary to elucidate the criminal offense and authorship, in accordance with the provisions of art. 6th of the CPP. (BRAZIL. STF, 2012).
According to the STF, making access to the telephone illegal in serious cases of gang formation and homicide is unreasonable, as there are no absolute guarantees as indicated below:
In the hypothesis, involving crimes of gang formation and qualified murder ordered, the attitude of the police authorities to analyze the latest records contained in the seized cell phones is perfectly reasonable, and there is no need to talk about injury to the intimacy or privacy of co-defendant Francisco Leite da Silva, nor the patients. There are no fundamental rights and guarantees of an absolute nature, and it is also certain that these cannot, under any pretext, serve as a protective cloak for shady practices. (BRAZIL. STF, 2012).
In addition to the non-absolute nature of the guarantees, it was highlighted that they cannot serve as a protective shield against illicit practices.
An important point of the ruling concerns the non-rejection of derived evidence obtained on the cell phone, even if obtained illegally. This would occur according to the STF, due to the doctrine of the fruits of the poisonous tree (American construction), being subject to mitigation, since due to its expansion, there could be a potential situation of impunity.
Finally, by way of mere argument, even if the evidence produced could be considered illegal, and the other evidence illegal by derivation, in terms of the theory of the fruit of the poisonous tree, I believe that, still thus, better luck would not assist the defense. I explain.
The rejection of derivative evidence is based on the American doctrine of the fruits of the poisonous tree…