The Use of Subjective Suspicion Criteria in Police Stop-and-Search Practices between Public Security and Human Rights

Abstract

The concept of founded suspicion established in Article 244 of the Brazilian Code of Criminal Procedure is one of the most controversial aspects of police activity in Brazil, primarily due to the normative vagueness that characterizes the provision and the absence of objective parameters guiding its application. In everyday practice, the recurrent use of subjective criteria is evident, including intuitive perceptions, behaviors interpreted as suspicious, personal characteristics and territorial stigmas. This dynamic fosters arbitrariness, reinforces penal selectivity and heightens violations of fundamental rights, particularly against historically marginalized groups. In this context, it becomes essential to examine how the subjectivity embedded in founded suspicion compromises the legality of police stop-and-search actions and the legal certainty of both citizens and state agents. The purpose of this study is to analyze the legal, social and institutional impacts arising from the discretionary application of founded suspicion and to propose pathways for constructing more objective and democratically compatible criteria. The research seeks to clarify the legal and jurisprudential foundations of the institute, explore its relationship with penal selectivity and present alternatives capable of reducing arbitrariness and strengthening the legitimacy of police conduct. A qualitative approach is adopted, with a theoretical-dogmatic nature and a deductive method, employing bibliographic review, documentary analysis and comparative examination of decisions issued by Brazil’s higher courts. International experiences are also considered, particularly the United Kingdom’s stop and search model and the United States’ judicial control over stop and frisk practices, both of which provide relevant references for transparency and accountability mechanisms. The findings reveal that the absence of objective criteria weakens fundamental rights, deepens structural inequalities and exposes police officers to legal uncertainty. The study concludes that standardizing operational protocols, ensuring continuous training in human rights, implementing technological recording tools and reviewing Article 244 are essential measures to reconcile police effectiveness with the protection of rights in a democratic context.