A (im)possibilidade do cumprimento do mandado de busca e apreensão em horário noturno no combate ao tráfico de drogas à luz da inviolabilidade domiciliar

Abstract

This present study has the objective to analyze whether or not the fulfillment of the search warrant and seizure in relation to drug trafficking in the light of home inviolability and legal understanding, from the perspective of constitutional law and criminal law. For this, we used the deductive method of approach, as they came from, which state the art. 5, XI of the Magna Carta, given the case law analysis and doctrine, aiming to reach a conclusion or a form of interpretation of the constitutional provisions regarding the proposed theme. The Carta Maior towards greater protection of the home during the night, set the house may only be penetrated in cases of flagrante delicto or disaster, to give help, or, during the day, by court order. Thus, it appears that the implementation of the search warrant and seizure may be carried out only during the day, which, in turn, have hindered the fight against drug trafficking by the authorities, since compliance with these warrants during the statutory period often proves ineffective. As a result, the courts in recent decisions, has acknowledged the possibility of the fulfillment of search and seizure warrant during the night on the grounds that such action does not violate the constitutional provision, given that, in addition to fundamental rights not born absolute, the legislature, by providing for the inviolability of the home, aimed to protect the lawabiding citizen, and not wrap up the crime and criminals under the cover of darkness.