A VIOLABILIDADE DOS APARELHOS TELEFÔNICOS ENCONTRADOS NO LOCAL DO CRIME PELA AUTORIDADE POLICIAL AUSENTE DE PRÉVIA AUTORIZAÇÃO JUDICIAL À LUZ DO ENTENDIMENTO DOS TRIBUNAIS SUPERIORES

Abstract

The present work aims to analyze the violation of telephone devices found at the crime scene by the police authority, specifically regarding the data and information contained therein, regardless of judicial authorization, from the perspective of precedents and understandings of the Superior Courts. Initially, the rights to the inviolability of intimacy, private life and communications, as well as the fundamental right to public security, will be presented. Then, the theoretical foundations that make the violation by the police authority viable will be analyzed, starting from the most basic premises such as the concept of police power and an inspection of the judicial police to the attributions of the police authority that enable the apprehension and collection of all evidence on the phone. Based on these bases, the foundations that enable the violation of the telephone will be analyzed, as in the hypothesis of its submission by the police authority to the expertise, through the procedure of personal search and seizure that brings legitimacy to the act, dispensing with previous court decision, in the analogy about the exceptionality of the restriction of fundamental right in the event of arrest in flagrante with regard to home inviolability and also, in light of the minority doctrine, a study will be carried out on the possibility of admitting illegal evidence in favor of society on the prism of the postulate of proportionality. Ultimately, the precedents of the higher courts (STJ and STF), which have internally divergent understandings, will be observed. Finally, the research concluded that it is possible to access information and data records stored on cell phones, without prior authorization from the judge; however, the inviolability of communications, intimacy and private life must be preserved. However, the hypothesis of complete violation of the cell phone is not ruled out when dealing with exceptional and urgent situations whose delay in obtaining a court order would cause violation of the most significant rights in the specific case.