In the process, the prosecutor who made the approach told police headquarters that, crossing a road on his way, he “spotted a black individual in the distance” who “was standing beside the curb of the public road” next to a vehicle – which, according to the prosecutor, constituted a “typical scene of drug trafficking”.
The Federal Supreme Court decides this Thursday (02/03) whether the trial evidence in which the “suspicion” that led to the police approach is whether the person is black is legal or not. The decision is for a single case, but has repercussions for the entire criminal justice system.
The lawsuit involves Francisco dos Santos, a black man from São Paulo who was stopped and searched by police on the street. The motive is described by the carabinieri themselves in the police report.
As can be seen from the file, the deputy who approached the police station stated that, while walking along a road on his way, he “saw a black individual in the distance” who “was standing on the side of the public road” next to a vehicle, which , according to the prosecutor, constituted a “typical scene of drug trafficking”.
The term “black individual” was used by the other officer involved in the investigation to describe the situation in the police report. None of the PMs saw a transaction in progress.
Francisco admitted to justice that he is a drug addict, which is no longer considered a crime and is not punished in Brazil. But he was tried and sentenced to 7 years in prison in the lower courts as a drug dealer for having less than 1.5 grams of cocaine.
The Office of the Public Defender of São Paulo, which defends Francisco, and the legal entities participating in the trial such as amicus curiae (a justice employee who has some social interest in the case but is not directly related to the outcome) claim the police approach was a case of racial profiling.
“Racial profiling is when police forces make use of generalizations based on color or race, paying no attention to behavior that actually raises suspicions that a crime is in progress,” says criminal lawyer Gabriel Sampaio, director of litigation and the impact of Conectas Human Rights, an entity that is amicus curiae in the process
Both Conectas and others curia friend of the case say that the central issue is more than a discussion of drug trafficking or drug policy, but about racism.
“This case is not a case of drug possession, principles of insignificance, but of racism,” said criminalist Priscila Pamela Cesário dos Santos, director of IDDD (Institute for the Defense of the Right to Defense), in an oral discussion during the trial – started on Wednesday (01/03) and continued on Thursday.
Research by IDDD in collaboration with data_labe shows that black people are four times more likely to be stopped by the police than white people.
Sampaio explains that Francisco’s case is important because this racial motivation is not always expressed in the records, as in the present case.
Deputy Federal Attorney Lindora Araújo, who represented the prosecutor early in the trial, denied that the police motivation was racial and said the police were “just describing the physical type” of the person.
The STF must decide whether the justification provided by the police in the case is sufficient to motivate the approach, creating an understanding that can become a benchmark for other cases.
Brazilian criminal legislation and jurisprudence stipulate that the police approach to a person search must be motivated by “well-founded suspicions”.
“Suspicion must be based on concrete facts, on attitudes. An approach based on personal characteristics such as skin color cannot be legitimized”, defends Gabriel Sampaio.
The case is important because it is an opportunity for justice to determine rules for what is considered a “founded suspicion”, says criminologist Cristiano Maronna, of the Justa research center, which studies the political economy of justice.
“The well-founded suspicion has always been considered too general a term,” says Maronna. “We cannot continue to allow the motivation for police action to be based on subjective elements of what the officer considers suspicious.”
“The opportunity that exists today is to create a parameter that puts order and requires a more concrete motivation, which really presents rules and parameters to guide police action,” says the criminal lawyer.
Source: Terra
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