More than 90% of entries by police officers into homes in Brazil take place without any prior investigation or judicial warrant, violating the Constitution. Furthermore, statements by police officers are deemed true and go unchallenged in the courts. These are among the findings of a study by the Nucleus for Racial Justice and Law (NJRD) at the FGV Sao Paulo Law School, which analyzed 1,837 second-instance judgments handed down by courts in seven Brazilian states (Bahia, Sao Paulo, Rio de Janeiro, Paraná, Sergipe, Goiás and Pará) in all five regions of the country between 2000 and 2021.

“The home is people’s inviolable refuge, and no one may enter it without the consent of the residents, unless someone is caught in the act of committing a crime, there is a disaster, to render aid, or if there is a court order (and only during the day),” says Article 5, part XI of the Federal Constitution. For the Brazilian justice system, however, the exceptions provided for in the Constitution have become the rule.

All the researched cases originated in police raids, 60% of which were motivated by “anonymous complaints,” 31% by “routine patrols” on the streets and 9% by “complaints from passers-by and third parties” (who may be people on the street or neighbors of the accused).

“According to the ‘official’ narrative in the case records, given by the police, there is a pattern: an anonymous tip-off indicates that there is drug trafficking in a certain place. The police go there – usually to the home of the accused person – and ask permission to enter, which is always granted by a resident, who may be the suspect’s mother, sister or wife, or the accused person himself. This is called ‘permitted entry,’” explains researcher and lawyer Amanda Pimentel of NJRD.

She sums up the main legal issue in these cases: “Although an anonymous tip-off is a legitimate means of initiating an investigation, it cannot alone form the basis of a police action, especially when a constitutional rule such as the inviolability of the home is at stake. The complaint must be accompanied by an investigation to prove the veracity of its content. Furthermore, permission to enter the home cannot be obtained through coercion or violence, and even when consent is obtained by lawful means, we understand that mere suspicion cannot authorize entry into the home but must be supported by sufficient reasons to indicate that what is happening inside the home is a crime.”

The second situation in which most police raids occur is during routine patrols, when police officers identify a so-called “suspicious attitude.” According to the officers’ accounts, although this type of approach begins on the streets, it ends up in the suspects’ homes, when, in general, the accused person spontaneously confesses to having more drugs in their home.

“It is strange, to say the least, for someone to say of their own free will, when questioned by police, that they have committed a crime, in other words, that they have more objects in their home that would strengthen the severity of a crime they have been caught committing. The flow between the street and the home carried out by the police to determine a crime puts the narrative of spontaneous confession into question, especially when the defense lawyers allege coercion and violence committed by the officers,” says Pimentel.

 “Copy and paste”

In the analyzed cases, the defense lawyers requested nullity for three reasons: in 97% of cases for violation of the defendants’ homes, in 2% of cases for violence, coercion or torture by police officers, and in 1% of cases for planting evidence or faking a crime. Regarding the merits of the cases, 69% of the defense lawyers asked for acquittal due to the weakness of the evidence and 31% asked for the crime of drug trafficking to be downgraded to drug use. The evidence in the almost 2,000 cases is mostly testimonial, with police officers accounting for 69% of the witnesses, while other people accounted for 31%. In other words, more than two-thirds of the witnesses were public security agents.

Even with weak evidence and/or evidence obtained by violating one of the main constitutional guarantees, judges rejected 98% of the nullities argued for by the defense lawyers. Convictions were upheld at second-instance level in 94% of cases.

According to Pimentel, what is most striking about the findings is their uniformity – not only in the narratives of police officers in the case records, but also in the judicial decisions. “Magistrates usually justify their sentences by arguing that the police’s suspicions, whether motivated by anonymous complaints or patrols – in other words, by ‘reasonable suspicion’ – are enough to authorize entry into the defendants’ homes,” she says.

The study highlights the fact that police officers do not cite any other inquiries and hardly ever mention any objective facts indicating any wrongdoing on the part of those approached. The most common situations narrated by police officers as grounds for “reasonable suspicion” during patrols are the accused person’s past behavior, the fact that they are close to “drug trafficking locations,” attempts to escape and even “nervousness.”

According to the researchers, even if the police officers’ narratives were 96% true – as could be inferred from the convictions upheld at second-instance level – the rulings contradict a series of important higher court judgments on the subject. For example, in Appeal HC 598051, the Superior Court of Appeals deemed that entry into a residence to investigate the occurrence of a crime without a judicial warrant must be preceded by an audio and video recording of the resident’s authorization, made by the police officers. Of 40 cases analyzed manually by NJRD, this happened in only one.

In judging Special Appeal 603616, Federal Supreme Court justice Gilmar Mendes argued that a new understanding should be created regarding personal searches in order to guarantee the principle of inviolability of the home. “Protection against arbitrary searches requires that inquires be evaluated on the basis of what was known before they were carried out, not afterward,” he said while casting his vote.

Learn about some cases in which courts took a different view from the one widely adopted by the Brazilian justice system when faced with evidence obtained by entering a home without a warrant: 

• In Appeal HC 89853, the Superior Court of Appeals deemed that it is illegal for police officers to enter homes without prior inquiries. 
• In appeals HC 364359 and HC 512418, the Superior Court of Appeals ruled that a prior police investigation into the veracity of an anonymous tip-off is essential.
• In Appeal HC 598051, the Superior Court of Appeals decided that when there is no judicial warrant, the police must record on audio and video the resident’s authorization to enter their home.
• In the Fernandez Prieto & Tumbeiro vs. Argentina case, the Inter-American Court of Human Rights condemned Argentina for a discriminatory police approach, determining that “reasonable suspicion” must be based on objective and verifiable facts.
• In Appeal HC 158580, a court ruled that evidence obtained from the vague notion of “suspicious attitude” is unlawful. 

Racism and “reasonable suspicion”

According to data from the National Department for Penitentiary Information (Infopen), in 2022, 28.7% of male prisoners and 55.4% of female prisoners were serving prison sentences for some type of drug trafficking offense. In terms of race/color, the latest data from the Brazilian Public Security Forum (FBSP) shows that 67.5% of prisoners are black, while 29% are white.

According to NJRD, the police are the ones who end up filtering information and establishing who will be arrested for drug trafficking, but the justice system plays a fundamental role in this dynamic when it simply accepts the police’s version of events. “This is clear in the acceptance of the empty concept of ‘reasonable suspicion’ as a mass justification for police questioning, including in people’s homes. The constitutional guarantee of the inviolability of the home ends up being relativized by the color of residents and their place of residence,” says researcher Julia Drummond.

In May 2022, the Superior Court of Appeals ruled that personal searches without a warrant, motivated by suspicious behavior, are illegal. The court’s Sixth Panel dismissed a criminal case against someone accused of drug trafficking, even though he was in possession of illicit substances. The ruling stated that there must be objective evidence of a crime being committed before a search, not after.

Watch a video called “Asilo inviolável?“ (“Inviolable home”), which presents the main findings of this study.