STF: Cell phone left at crime scene serves as evidence

The Supreme Federal Court validated, in a trial this Wednesday 25, the evidence obtained by police expertise on cell phones belonging to defendants forgotten at the crime scene , even without judicial authorization . The rapporteur was Minister Dias Toffoli.

The case has general repercussions, that is, the Court's conclusion will serve as a parameter for lower courts in similar cases.

The ministers were unanimous in defining that this data can only be used in the investigation of the crime to which the loss of the device is linked. The police will be able to preserve all the content of the cell phone, but will have to present arguments to the court in order to access it.

In cases where police seize a cell phone while the suspect is present — in flagrant arrests, for example — access to the data depends on the owner's express consent or judicial authorization.

The specific case involves a man who, after committing a robbery, was identified by the police from the cell phone he dropped while fleeing.

The first instance convicted the defendant, but he was acquitted by the Rio de Janeiro Court of Justice, which declared that access to the device's content without judicial authorization was illegal. The Rio de Janeiro Public Prosecutor's Office appealed to the Supreme Court and won.

Read the thesis of general repercussion defined by the Supreme Court:

1. The mere seizure of a cell phone, pursuant to Article 6 of the Code of Criminal Procedure (CPP), or in flagrante delicto, is not subject to jurisdictional reservation. However, access to the data contained therein:

1.1. In cases of accidental discovery of a cell phone, access to the respective data for the sole purpose of clarifying the authorship of the alleged criminal act or its owner does not depend on consent or prior judicial decision, provided that the adoption of the measure is subsequently justified. 1.2. In the case of a cell phone seized in accordance with article 6 of the CPP or upon arrest in flagrante delicto, access to the respective data will be subject to the express and free consent of the data subject or prior judicial decision, which justifies, based on concrete elements, the proportionality of the measure and delimits its scope in light of the fundamental rights to intimacy, privacy, protection of personal data and informational self-determination, including in digital media. In such cases, speed is essential, and the police authority must act as quickly and efficiently as possible, and the Judiciary must give priority processing and assessment to requests of this nature, including on duty.

2. The police authority may adopt the necessary measures to preserve the data and metadata contained in the seized cell phone prior to judicial authorization, subsequently justifying the reasons for due access.

3. The above-mentioned arguments will only have prospective effects, except for any requests made by defenses up until the date of the conclusion of the trial.