Criminal Procedure: Search, Seizure, & Arrest Laws
Burglary – Definition – The search is an abnormal form of termination of the process and, as a legal act, is a unilateral act. This means that it is recepticio, i.e., it does not need the agreement of the counterparty to produce its own effects.
Search Warrant Procedures
Article 211. Content of the Order
- The judicial authority enacting the raid and brief identification of the procedure’s target.
- Specific location(s) to be searched.
- The authority performing the search.
- The specific reason for the raid, including objects or persons sought and measures undertaken.
- The date and signature.
The order lasts a maximum of seven days, unless issued for a specified period, which must be stated.
Article 212. Procedure
The search warrant must be notified to those inhabiting or present at the location, providing them with a copy. The procedure will follow Article 202.
If the notified party refuses or no one responds, police may enter. If the place is empty after the search, it must be secured to prevent unauthorized entry. This procedure is recorded in the minutes.
Article 213. Public Places
Article 210’s restrictions do not apply to public administrative offices, meeting and recreational facilities while open to the public, or any enclosed area not designated for private use. In these cases, the judge’s order must be notified to the person responsible for the premises, unless it jeopardizes the investigation.
Occupation and Interception of Correspondence and Communications
Article 218. Seizure
During a criminal investigation, with court permission, the Public Ministry may seize correspondence and documents from or directed to the alleged perpetrator that may relate to the investigation.
They may also seize documents, securities, and money in bank accounts or safe deposit boxes held by banks or third parties if reasonably believed to be related to the crime.
In these cases, the national criminal investigation police, in urgent situations, may directly apply to the Control Judge for an order, with the Public Ministry’s permission, which must be recorded in the application.
Article 219. Interception or Recording of Private Communications
Private communications, whether in person, by telephone, or other means, may be intercepted or recorded according to law. The contents will be transcribed and added to the proceedings, with original recordings preserved to ensure their integrity and subsequent identification.
Environmental communications refer to those made personally or directly without any instrument or device.
Article 220. Authorization
The Public Prosecutor requests authorization from the Control Judge, specifying the crime, duration (not exceeding 30 days, with possible extensions), technical means, and location. In urgent situations, the national criminal investigation police may apply directly to the Control Judge, with the Public Ministry’s permission, including the necessary details in the application.
The judge’s decision must be substantiated and recorded.
Article 221. Use of the Recording
Authorized recordings are exclusively for investigative and prosecutorial authorities and may not be divulged.
Measures of Personal Coercion
Article 243. Free State
Anyone charged with an offense remains free during trial, unless otherwise specified in this Code. Deprivation of liberty is a precautionary measure used only when other measures are inadequate.
Article 244. Proportionality
Personal restraint must be proportionate to the offense’s severity, circumstances, and probable penalty, not exceeding the minimum sentence or two years for multiple offenses (considering the most serious crime’s minimum sentence). Extensions may be requested in justified cases, not exceeding the minimum penalty for the most serious offense, or if delays are attributable to the defendant or their counsel.
If the case is in the Court of Appeals, the request is forwarded to the Court of First Instance, which summons the accused and parties for a hearing to decide on the extension, considering proportionality.
Article 245. Limitations
Preventive detention cannot be ordered for people over seventy, women in the last three months of pregnancy, breastfeeding mothers until six months postpartum, or those with terminal illnesses. In these cases, house arrest or confinement in a specialized center may be ordered.
Article 246. Grounds
Personal coercion measures require a founded judicial decision, minimizing harm to those affected. The Supreme Court of Justice maintains an automated registry of citizens subject to such measures.
Article 247. Narrowly Construed
Provisions restricting freedom, limiting powers, and defining flagrante delicto are interpreted restrictively.
Arrests in Flagrante Delicto
Article 248. Definition
Flagrante delicto refers to a crime being committed or just committed, or when a suspect is pursued by police due to victim or public outcry, or caught shortly after the offense near the scene with objects suggesting their involvement. Any authority must, and any individual may, apprehend the suspect if the offense warrants imprisonment, delivering them to the nearest authority, who will inform the Attorney General within twelve hours, subject to the Constitution’s provisions on immunity for National Assembly deputies and state legislative council members. The State protects individuals assisting in apprehension.
Article 249. Special Procedure
Flagrante delicto cases follow the Special Procedure outlined in Part II of the Third Book.