O poder do estado face aos direitos fundamentais: um estudo acerca dos aspectos jurídicos da legalidade da busca pessoal (abordagem policial)

Abstract

This monograph is scoped to review the legal aspects that involve the ( i )legality of personal quest , under Article 244 of the Criminal Procedure Code , and how these aspects can affect fundamental rights established by the Brazilian Democratic State. For this, it was demonstrated the tenuous bond existing between legal and illegal act involving personal quest, and as a precondition for its realization is reason to suspect. During the research we used the deductive and the dialectical method. The work is divided into four chapters. The first chapter works up the power of the state, from a perspective of historical review of their design, from antiquity to the present day. The second chapter deals with the guarantee of fundamental rights in a democratic state, causing an adversarial relationship between the state interest and individual interest, and their proper balance uses the police power. The third chapter discusses the theme of this study is that the legality of personal quest , doing an analysis of what does " reasonable suspicion " from the police conception and design of the courts. If - this chapter demonstrates, yet, as the suspicion expression can lead to legal uncertainty state officials responsible for public safety. Finally, the fourth and final chapter is proposed legislative change, emphasizing the need to limit the field for discretion.