Art. 293. If the executor of the warrant verifies, with certainty, that the defendant has entered or is in any house, the resident will be summoned to hand him over, in view of the arrest warrant. If he is not immediately obeyed, the executioner will summon two witnesses and, being daylight, will enter the house by force, breaking down the doors if necessary; if it is night, the executor, after summoning the resident, if he is not heeded, will have all the exits guarded, making the house incommunicado, and, as soon as dawn breaks, he will break down the doors and carry out the arrest.
Single paragraph. The resident who refuses to deliver the hidden defendant in his house will be taken to the presence of the authority, so that he can proceed against him as the law requires.
Accused who is inside some house
Home inviolability and arrest warrant: If there is an arrest warrant issued by the judge (arrest warrant), the executor, if it is daytime, may enter the defendant’s or third party’s home to carry out the arrest. Being night, in view of the inviolability of the home, established in the CPP, the CP and the CF ( article 5, item XI – “the house is an inviolable asylum for the individual, no one can enter it without the consent of the resident, except in the case of flagrante delicto or disaster, or to provide help, or, during the day, by court order”), the executor cannot enter at home without the consent of the resident. If it is daytime, the resident will be summoned to hand over the defendant, in view of the order of arrest, and, if he is not obeyed immediately, the executor will summon two witnesses and enter the house by force, breaking down the doors, if necessary. He may, therefore, use force against people or things, but only that necessary to overcome resistance, in accordance with article 292. If it is night, the executor may enter the home to carry out the arrest, provided that the resident consents. Anyone who answers the door is presumed to be a resident, unless proven otherwise (people who are just renovating their home, for example). If there is no consent, the executor will guard all the exits, making the house incommunicado, and, as soon as dawn breaks, he will break down the doors and make an arrest.
Day and night: With the advent of the CPC of 2015, the discussion around the criterion for determining what is day and what is night is resolved: “Procedural acts will be carried out on working days, from 6 (six) to 20 ( twenty) hours” (Article 212 of the CPC).
Flagrante delicto: In the event that a crime is being committed, or is about to be committed ( article 150, paragraph 3, item III, of the CP ), inside the domicile, the executor is authorized to enter to carry out the arrest, either day or night, and regardless of the existence of an arrest warrant.
Details of entering the home: Details of the formalities for entering the home, in the event of an arrest warrant, are given in article 245 and its paragraphs, according to which house searches will be carried out during the day, unless the resident consents to them being carried out at night, and, before entering the house, the executors will show and read the warrant to the resident, or whoever represents him, summoning him , then to open the door. In case of disobedience, the door will be broken into and forced entry. If the inhabitant recalcitrant, the use of force against existing things inside the house will be allowed, in order to discover what is sought. If the person to be sought is determined, the resident will be summoned to show him. Once the person you are looking for is discovered, he will be immediately arrested. Once the diligence is over, the executors will draw up a detailed report, signing it with two witnesses.
Absence of witnesses: The absence of a witness does not prevent the executor from entering the residence. The witnesses are a recommendation of the CPP, since with them the State agent will be able, in case of false accusation, to prove that he did not practice abuse of power.
No need for a search warrant: In the chapter dealing with search and seizure, the CPP stipulates, in its provision 240 , that the search will be at home or in person, in order to arrest criminals. For this search under Article 293, the warrant is indispensable. If there is an arrest warrant, there is no need to also have a house search warrant. But, pay close attention to the wording of the caput of this device, it is necessary for the executor of the warrant to be sure, having elements of conviction, that the defendant has entered or is in the residence where the investigation will be carried out. The executor cannot use the warrant as a “pretext” to indiscriminately invade different residences.
Absence of the resident: If the resident is absent, the executor may enter the home to carry out the arrest ( article 245, paragraph 4 ).
Remission: On house searches and execution of arrest warrants, see comments on articles 240 to 248 .
Crimes of the executor and the resident: When it is daylight, and if the resident refuses to allow the executor to enter the home, the resident commits an offense of personal favoritism, consisting of helping to evade the action of the public authority responsible for the crime. However, it is exempt from penalty if the person who provides the aid is an ascendant, descendant, spouse or brother of the criminal ( article 348, paragraph 2 of the CP). If the entry is not allowed, if it occurs at night, there is no crime, since at that time the resident is in the regular exercise of the right, in view of the terms of the device now under discussion. As for the executor, in the event that he enters the home without the consent of the resident, or if, even during the day, he uses excessive force against people or things, he will be subject to the penalties of the crime of abuse of authority.
Scope of the term domicile: The configuration of domicile in the criminal sphere is different from civil domicile. In the diction of article 150, paragraph 4 of the CP , the expression includes any inhabited compartment, occupied room of collective housing, compartment not open to the public, where someone exercises a profession or activity. The expression inn, inn or any other collective dwelling, as open, tavern, gambling house and others of the same kind are not understood.
Jurisprudence
Forced entry into a home without a court order is only licit if there are elements that indicate the commission of a crime: occurrence, inside the house, of a situation of flagrante delicto, under penalty of disciplinary, civil and criminal liability of the agent or authority, and nullity of the acts performed ( RE 603.616, rel. min. Gilmar Mendes, judgment on 4 and 5- 11-2015, ruling pending publication – Newsletter 806, Plenary, General Repercussion).
Home invasion without sufficient evidence vitiates the flagrante delicto related to drugs found: Drug trafficking. Flagrant. Home as an expression of the right to privacy. Inviolable Asylum. Constitutional exceptions. Restrictive interpretation. Home invasion by the police. Just cause need. There is no just cause capable of authorizing home invasion the mere intuition of the police authority of possible trafficking practiced by an individual, based solely on his escape from a place supposedly known as a point of sale of drugs in the face of an imminent police approach (…) In the event that the accused he is in a place supposedly known as a drug sales point, and, when he sees police patrolling, he flees to his residence (for unknown reasons) and, as a result, is pursued by police, without, however, having a context facts from which it can be concluded (or, at least, suspicions have been founded), that criminal conduct also takes place inside the residence, the question of the legitimacy of police action, when invading the home, becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance ( becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance ( becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance (REsp 1.574.681-RS, Rel. Min. Rogério Schietti Cruz, unanimously, judged on 4/20/2017, DJe 5/30/2017 – Newsletter 606 ).
Comment: This is an interesting case. The nullities of the investigation and the flagrante delicto do not affect the process (but may give rise to the lack of just cause for criminal action). However, in the judgment above, we are not facing the nullity of the arrest warrant in flagrante delicto itself, but of the arrest warrant that constitutes illicit evidence. The nullity of the record is due to it being illegal evidence. Nullities of the investigation and the flagrante delicto do not affect, in principle, the process, since the investigation and the process are distinct legal relations, the former having an administrative nature and the latter procedural. In the concrete case there is this effect. The nullity of the investigation, which stems from the fact that it is illegal evidence, reaches the process affecting its validity.
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).
