2nd Panel of the Court votes unanimously to recognize that an operation carried out without a search and seizure warrant is illegal
The 2nd Class of stf (Federal Supreme Court) changed its understanding on Monday (5.Jun.2023) and unanimously recognized as invalid the seizure of 695 kg of cocaine collected in an operation without a search and seizure warrant in a warehouse in the Port of Itaguaí, located in the State of Rio de Janeiro, in 2022.
The decision was taken in the virtual plenary of the Supreme Court, where ministers only cast their votes and there is no debate. The defendant’s motion for clarification was accepted and the rapporteur Nunes Marques was accompanied by ministers André Mendonça, Dias Toffoli and Gilmar Mendes.
In his vote, Nunes Marques stated that “the factual and procedural situations presented by the appellant are identical to those relating to the co-defendant, notably regarding the illegality of the evidence obtained in the face of the seizure”. Here’s the full of the minister’s vote (69 KB).
This year’s decision changes the understanding of the 2nd Panel of the Supreme Court which, in September 2022, formed a majority to understand the seizure of 695 kg of cocaine as valid, even without the search and seizure warrant.
At the time, Nunes Marques disagreed with Fachin, then rapporteur of the case, and considered that the action to seize the drug had been lawful due to elements that supported the performance of the Federal Police (Federal Police) and the Civil Police of Rio de Janeiro in the episode, such as the suspicion of international drug trafficking.
The divergent minister was accompanied by André Mendonça and Ricardo Lewandowski, who left the Court and should be replaced by Cristiano Zanin, if the Senate approves the nomination.
Fachin and Gilmar Mendes voted for the invalidity of the seizure because they understood that the operation without a search and seizure warrant did not justify the breach of the right to the inviolability of the home.
UNDERSTAND THE CASE
The seizure took place when Civil Police and PF agents who were investigating information and an anonymous complaint about drug trafficking in the Port of Itaguaí entered a shed at the site. There, 695 kg of cocaine were found. The drug was partly hidden in sleeves that were to be shipped abroad.
The judgment to define the validity of the seizure of the drug without a search and seizure warrant arrived at the Federal Supreme Court in August 2022 after the MPF (Federal Public Ministry) sue the Court against the decision of the TRF-2 (Federal Regional Court of the 2nd Region) which interpreted the operation as illegal.
However, Minister Fachin denied following up on the RE (extraordinary appeal) presented by the MPF, which, shortly thereafter, appealed with an appeal, judged in September 2022.
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