Art. 240. The search will be at home or in person.
§ 1 A house search will be carried out, when justified reasons authorize it, in order to:
a) arrest criminals;
b) seize things found or obtained by criminal means;
c) apprehend counterfeit or counterfeit instruments and counterfeit or counterfeit objects;
d) seizing weapons and ammunition, instruments used in the commission of a crime or intended for a criminal purpose;
e) discover objects necessary for the proof of infringement or for the defense of the defendant;
f) apprehend letters, open or not, intended for the accused or in his possession, when there is suspicion that knowledge of their content may be useful for elucidating the fact;
g) apprehend victims of crimes;
h) collect any element of conviction.
§ 2 A personal search will be carried out when there is a well-founded suspicion that someone conceals a prohibited weapon or objects mentioned in letters b and letter h of the previous paragraph.
Moment of search and seizure, home and lawyer inviolability
Timing of the search and seizure: The search and seizure can be determined before starting the police investigation, during the investigation, during the criminal investigation, at the appeal stage by court order ( article 616 ) and during execution.
Home inviolability: See notes to Article 283 .
Home inviolability and arrest warrant: See notes to Article 293 .
Home inviolability in permanent crimes: See notes to Article 303 .
Item “f” of paragraph 1 not received: Letters, whether opened or not, cannot be seized. As provided in article 5, item XII, of the CF , the secrecy of correspondence is inviolable. Correspondence is confidential, according to the Constitution, and, therefore, it does not matter if it has already been opened or not by the addressee.
Inviolability of the lawyer’s office: Article 7, item II, of Law 8.906/94 (Statute of Advocacy), establishes the inviolability of the lawyer’s office: “A lawyer’s rights are: (…) II – the inviolability of his office or location of work, as well as their work instruments, their written, electronic, telephone and telematics correspondence, provided they are related to the practice of law”. A search and seizure warrant may not be issued to collect evidence at the lawyer’s office against the accused defended by him. This inviolability, however, is not absolute. There is no inviolability of the lawyer, or his office, when he is committing a crime or when any material that constitutes an element of the corpus delicti is kept in his office (article 243, paragraph 2).
Jurisprudence
Forced entry into the home and Theme 280 of the STF: In the judgment of RE n. 603,616 RG/RO, under the general repercussion regime, the Federal Supreme Court established the thesis that “the forced entry into a home without a court order is only lawful, even at night, when supported by well-founded reasons, duly justified a posteriori, that indicate that a situation of flagrante delicto has occurred inside the house, under penalty of disciplinary, civil and criminal liability of the agent or authority, and nullity of the acts performed” ( Theme 280/STF ).
Anonymous denunciation and home invasion. Drugs: The existence of an anonymous complaint of the practice of drug trafficking, added to the accused’s flight when he saw the police, by themselves, do not constitute well-founded reasons to authorize the police to enter the accused’s home without his consent or without a court order ( RHC 89.853-SP ), Rel. Min. Ribeiro Dantas, Fifth Panel, unanimously, judged on 02/18/2020, DJe 03/02/2020).
Proof of consent to enter the residence : Proof of legality and voluntary consent to enter the suspect’s residence is the responsibility of the State, in case of doubt, and must be provided with a declaration signed by the person who authorized entry into the residence, indicating, whenever possible, witnesses of the act. In any case, the operation must be recorded on audio-video and the evidence preserved for the duration of the process ( HC 598.051/SP , Reporting Min. Rogério Schietti Cruz, Sixth Panel, unanimously, judged on 03/02/2021).
Access to the complete data obtained in compliance with the search warrant: after the search and seizure is carried out, although the report on the result of the diligence is restricted to the elements related to the facts under investigation, the defense must be assured access to the complete data obtained in compliance with the court order ( RHC 114.683/RJ , Reporting Judge Rogério Schietti Cruz, Sixth Panel, unanimously, judged on 04/13/2021).
Search and seizure warrant based on anonymous complaint: The search and seizure warrant cannot be based exclusively on anonymous complaint. The court decision authorizing the search and seizure measure, which is limited to invoking the constitutional provision without analyzing its
applicability to the specific case, must be annulled ( HC 180.709 , rel. min. Gilmar Mendes, DJE of 8-14-2020).
Inviolability of correspondence, telegraphy, data and telephone
Inviolability of correspondence, telegraphy, data and telephone communications: See this same subheading under the heading Inviolability of correspondence, telegraphy and telephone communications , in comments on article 157.
Inviolability of correspondence, telegraphy and telephone communications: See this same title in comments on Article 157 .
Access to cell phone and computer content: On access to cell phone and computer content in cases of arrest in flagrante delicto and search and seizure warrant, see jurisprudence under the title Environmental recording, home search, cell phone and expertise in comments to article 157 .
the personal quest
Personal search order: It does not need to be ordered by the judge, it can be determined by the police authority (police chief). The delegate is authorized to issue the personal search warrant to be carried out by the police agents. Obviously, when the police authority itself is carrying out the search, the warrant is unnecessary. A warrant may also be waived in the event of article 244 : “The personal search will not depend on a warrant, in the case of arrest or when there is well-founded suspicion that the person is in possession of a prohibited weapon or of objects or papers that constitute the body of the crime, or when the measure is determined in the course of a house search”.
Who can carry out a personal search: According to Douglas Fischer and Eugenio Pacelli, in comments on article 240, those authorized to carry out a personal search are those who, according to the constitutional norm ( article 144 of the CF ), are responsible for public safety: “I – federal police; II – federal road police; III – federal railway police; IV – civil police; V – military police and military fire departments” (Pacelli, Eugênio and Fischer, Douglas. Comments on the Code of Criminal Procedure and its Jurisprudence . 4th Ed. Editora Atlas: 2012).
Jurisprudence
The search and seizure of goods inside a vehicle : It is legal and inherent to the Federal Highway Police’s duty of regular inspection, in the case of the flagrante delicto transporting a large amount of money and the investigated person has not been able to justify the reason for such conduct ( RHC 142.250-RS , Reporting Justice Sebastião Reis Júnior, Sixth Panel, unanimously, judged on 09/28/2021, DJe 09/30/2021).
