Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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 Art. 294. In the case of arrest in flagrante delicto, the provisions of the previous article shall be observed, as applicable.

Flagrante delicto inside a house

Consent and force:  When someone is inside the home in a state of flagrante delicto, the active subject of arrest in flagrante delicto must request, in the absence of an emergency and the resident himself not the one who should be arrested, permission from the resident to enter the home. If not authorized by the resident, the executor of the prison (active subject) may enter by force and, if necessary, by breaking down doors. 

Arrest in flagrante delicto at night:  As it is night, you will not have to wait for the day to arrive. The restriction as to the day affects only entry into the home by means of a warrant ( article 5, XI, of the CF),  not concerning arrest in flagrante delicto. 

Who can enter the home:  You can enter the home to carry out arrest in flagrante, both the private individual and the agent of the State, since this type of arrest can be made by any citizen.

Well-founded suspicion:  There must be well-founded suspicion that someone is in flagrante delicto, that is, there must be elements of conviction that lead the executor of the measure to believe that at that moment a crime is being committed inside the home, so that justify the invasion. There will be no offense if, after forced entry into the home of another, it is verified that there was no state of flagrant delict, provided that beforehand there were elements of conviction that led to the belief that a crime was being committed there.

Persecuted who enters the home:  If the crime occurs outside the home and the delinquent, pursued, enters the interior of a residence, the active subject can continue the pursuit and carry out the arrest inside the home, since, according to the provisions of article  302 . _  Therefore, if the criminal is being pursued shortly after committing the crime and enters a residence, he persists in a state of flagrante delicto. Therefore, it is unnecessary, in this case, to interrupt the pursuit to issue a house search warrant.

Permanent crimes:  The active subject of arrest in flagrante delicto may enter the home to carry out the arrest at any time in permanent offenses, since, in permanent offenses, the agent in flagrante delicto is understood as long as the permanence does not cease (article 303   see comments to that device).


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