THE POSSIBILITY OF HOME SEARCH WITH THE CONSENT OF THE RESIDENT: ANALYSIS OF THE JURISPRUDENCE OF THE SUPERIOR COURT OF JUSTICE

Abstract

This article analyzes the right to the inviolability of the home, as established in item XI of Article 5 of the Brazilian Constitution, from the perspective of the understanding of the Superior Court of Justice (STJ) regarding the search of homes conducted by military police with the consent of the resident. The topic gained significance after the Federal Supreme Court (STF) partially annulled HC No. 598.051/STJ in 2021, which established new criteria for resident consent. The research examined 18 decisions issued by the STJ in Habeas Corpus appeals between May and June 2024, aiming to understand the current position of the Superior Court and provide guidelines for the actions of military police. After analysis, it was found that the prevailing decisions indicated that the resident's consent was not adequately demonstrated, deeming the entry illegal and, consequently, the evidence obtained as inadmissible. In 11 of the 18 rulings analyzed, consent was not adequately demonstrated; and in 12 of the 18 judgments, HC No. 598.051/SP was cited, indicating that the parameters established in the ruling are guiding the outcomes of various criminal cases. Some decisions also mention the so-called "environmental constraint," and it is observed that the presumption of veracity of the statements made by state agents has been mitigated. It is clear that the responsibility to prove the legality and voluntariness of the consent for entry into the residence has fallen on the State, highlighting the need for public security agencies to intensify their efforts and resources to address this challenge.