A validade da prova produzida pela inspeção física de celular apreendido em flagrante delito sem autorização judicial: um olhar sob a perspectiva do direito fundamental à privacidade no curso de investigação criminal

Abstract

This study aims to analyze whether the cell phone seized in the possession of a person arrested in flagrante delicto can be immediately inspected by the police authority, without the need for a prior authorizing judicial decision to make the collection of the data contained therein valid for purposes of proof in the process criminal. Therefore, the impacts produced by Revolution 4.0 on society will be presented, especially with regard to the improvement and expansion of the functionalities of telematic media. Subsequently, the need to balance, in the specific case, the protection of the fundamental right to privacy and the fundamental right to public safety will be demonstrated, in order to avoid, when the Judiciary is called to intervene, unfair convictions and acquittals. Then, the decisions handed down by the Supreme Court of the United States, the Spanish Constitutional Court and the Supreme Court of Canada will be presented, demonstrating that the Canadian judgment can serve as a relevant paradigm for the Supreme Court, since it presents objective criteria for physical inspection of the seized cell phone is lawful. From a methodological point of view, bibliographic research was used as a methodology, under a dialectical perspective, in order to carry out a dynamic interpretation of reality, above all to ensure the balance between the fundamental rights involved, in order to conclude, without exhausting the studies on the subject, that the conceptual contours of the fundamental right to privacy cannot be conferred a priori, making it imperative to unravel all the peculiarities and the context of the concrete case so that any violation of its precepts can be verified. Therefore, it is defended possible the immediate physical inspection of the cell phone of a person arrested in flagrante delicto, and the Judiciary Branch, a posteriori, is responsible for verifying any violation of privacy in the case examined