In November 2015, officers of the State of São Paulo received a tip from an informant reporting that an individual (named J.S.) kept weapons and drugs in his residence in a neighborhood of Guarulhos, State of São Paulo. The police carried out in loco investigations over a month, but did not observe any suspicious activity.
A few weeks later, after receiving a new tip, officers returned to the place and, upon seeing police arrival, J.S. “quickly entered his house and tried to flee through a back door.” The officers arrested J.S. inside his house and undertook a warrantless search. The police seized nine guns (including assault rifles and military-grade firearms), more than a thousand rounds of ammunition, drugs, and chemicals used in the illicit manufacture of narcotic drugs.
The Public Prosecutor’s Office of the State of São Paulo filed drug charges against J.S. in 2013 (according to article 33 of Federal Law No. 11,343/2006) (Case No. 3046559-20.2013.8.26.0224) and gun possession charges in 2015 (after receiving ballistic reports) (according to article 16 of Federal Law No. 10,826/03) (Case No. 0006327-46.2015.8.26.0224). and he was convicted by São Paulo State Courts of drug trafficking and illegal possession of a firearm to 12 years and 10 months imprisonment.
State Courts dismissed J.S. claims under the exclusionary rule. The Criminal Judge in Guarulhos stated that “a warrant was not necessary because there was a reasonable suspicion of an ongoing drug offense in the house and previous anonymous tips confirmed such suspicion.” The Court of Appeals, by rejecting a habeas corpus requested by J.S. attorneys (Habeas Corpus No. 2078076-14.2017.8.26.0000), also held that the warrantless search was lawful and “anonymous tips are the only means informants living in the vicinity of the underworld of drug trafficking have to alert police authorities.” The attorneys sought habeas relief. The Superior Court of Justice (STJ) denied, in 2018.
Finally, J.S. attorneys appealed to the Brazilian Supreme Court (STF) and Justice Edson Fachin remanded the case for further proceedings consistent with the merits of a landmark STF decision in Public Prosecutor’s Office of the State of Rondonia x De Lima (Extraordinary Appeal No. 603616). The STJ issued a second decision in 2020 in favor of J.S. unexpectedly concluding that police infringed the inviolability of J.S. home. The Court stated that the anonymous tip and the suspect behavior (running after police approach) did not give police a probable cause.
The described situation illustrates the big picture of Brazilian problems related to insufficient systematization of legal concepts and principles; as a result, judicial decisions in Brazil are unpredictable. The Brazilian Federal Constitution is partly to blame: it simply states that “the home is the inviolable refuge of the individual, and no one may enter therein without the consent of the dweller, except in the event of flagrante delicto or disaster, or to give help, or, during the day, by court order” (article 5, XI).
The STF decision (Extraordinary Appeal No. 603616, mentioned above) about home inviolability is basically a play on words: it basically states that “a warrantless entry into a private home is lawful only if there is a clear showing of probable cause (well-founded presumption) – shown after the fact – that the suspect is committing a crime (flagrante delicto).”
The Court did not define “well-founded presumption” and it did not elect review standards; as a result, it failed to reduce indeterminacy of an open textual legal principle. The STJ (second highest federal court in Brazil) jurisprudence (case law) reflects such disorientation: although it has accepted J.S. allegations – reaffirming recent holdings e.g. Habeas Corpus nº 435.465 (2018), Habeas Corpus nº 83.501 (2018) and Habeas Corpus nº 512.418 (2019) (a suspect quickly entering a house after noticing police approach and/or an anonymous tip do not give police a probable cause), it has also decided in a ‘doublethink’ fashion that police “are not required to carry out in-depth, but rather a brief investigation in order to ratify information anonymously received of informants” (steps observed in J.S.).
By limiting the scope of protection offered by home inviolability the Court has also ruled that police had probable cause when (i) officers smelled marijuana couple with suspect nervousness; (ii) officers received an anonymous tip and, by nearing the scene, saw suspects leaving the residence in possession of drugs; (iii) officers received an informant tip and saw paraphernalia inside suspects’ apartment; (iv) officers were dispatched to the scene after an anonymous tip and saw people using drugs at the window; and (v) a suspect ran into his house after seeing a police unit dispatched after an anonymous tip.
The two-way road of Brazilian courts’ interpretation about home inviolability is apparently shared by American courts. Many conflicting decisions regarding Fourth Amendment interpretation (and syllogistically of probable cause and exigent circumstances) may be identified. For example, the U.S. Court of Appeals for the Tenth Circuit decided in United States v. Mongold and Moore that “the officer’s observation of the odor of marijuana provided them with sufficient probable cause”; on the other hand, the Supreme Court ruled in Kentucky v. King that the smell of burning drugs and the sound of movement inside the suspect apartment did not create an exigent circumstance to justify a warrantless entry.
The Fourth Amendment’s broad scope may be a source of diverging interpretations as it simply states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Due to the amendment, any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings (Exclusionary Rule), except for a few exceptions (e.g., exigent circumstances) and as long a probable cause is present. Thus, if the State does not adequately establish both probable cause and exigent circumstances, or another recognized exception to the warrant requirement, then evidence obtained as a result of the warrantless entry will be excluded from evidence (Gutierrez v. State, 221 S.W.3d 680).
The problem (or fact) is that it has been broadly left to judges to decide whether exigent circumstances and probable cause are present in a real situation, and judges are not mere rule appliers and unbiased fact finders. Legal uncertainty is a feature of Brazilian and American legal systems, but it should have some rational limitations. Kit Kinports believes that “the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.”
Therefore, some interpretation standards are indispensable for defining the scope of protection of home inviolability and some additional reasonableness (influenced by a realistic rationality) should have a greater influence on judicial decisions: as ruled by a Canadian Court of Appeals, “both a justice and an arresting officer must assess the reasonableness of the information available to them before acting and the law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant” (R. v. Golub).