Arrest in Flagrante Delicto: What Happens in the First Hours

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

An arrest in flagrante delicto sets in motion a procedure with short deadlines and immediate rights. Knowing how to act in the first hours, from the moment of the stop to the custody hearing, can determine whether a person faces the case in freedom or behind bars.

What Counts as an Arrest in Flagrante Delicto

A flagrante arrest happens when a person is caught committing an offense, has just committed one, is pursued right afterward in circumstances that suggest guilt, or is found with tools and objects that point to the crime. These situations are set out in Article 302 of the Code of Criminal Procedure, and they define what the police authority may treat as flagrante delicto.

Unlike an arrest ordered by a judge, a flagrante arrest requires no prior warrant. That is why the review of whether the arrest was lawful happens in the hours that follow, while the facts are still being recorded and the defense is just beginning to act.

What Happens in the First Hours

After the arrest, the person is taken to the police station, where the police authority prepares the arrest report (auto de prisão em flagrante). This document brings together the statements of the arresting party, the witnesses and the detainee, as provided in Articles 304 to 306 of the Code of Criminal Procedure. A careful reading of the report can reveal defects that may later support a request to set the arrest aside.

Within twenty-four hours of the arrest, the detainee must receive the nota de culpa, a notice stating the reason for the custody and the names of the arresting party and the witnesses, under Article 306, paragraph 2, of the Code of Criminal Procedure. Within the same period, the report must be sent to the competent judge. If the detainee has not named a lawyer, a copy also goes to the Public Defender’s Office (Defensoria Pública). Failure to make these communications, or delay in making them, is a significant irregularity and can support a request for release at the very start of the proceedings.

Article 5, item LXIII, of the Constitution guarantees the right to remain silent and the right to a lawyer. A detainee is not required to produce evidence against himself, and the practical advice is to answer only questions about personal identification and to hold back any account of the facts until the defense lawyer advises that the time is right.

Another sensitive point is notification. Item LXII of the same article requires that the arrest be reported immediately to the competent judge and to the detainee’s family or to a person the detainee designates. Family members should look for a lawyer without delay, because early action directly affects the decisions that follow.

For certain crimes with a maximum sentence of no more than four years, the police authority itself may set bail, under Article 322 and following of the Code of Criminal Procedure. When that happens, paying the bail allows the person to await trial in freedom while the case is still at the police stage, without waiting for a judge to rule.

These situations are set out in Article 302 of the Code of Criminal Procedure, and they define what the police authority may treat as flagrante delicto.

The Custody Hearing and the Possible Outcomes

Article 310 of the Code of Criminal Procedure requires that the detainee be brought before a judge within twenty-four hours. At this custody hearing (audiência de custódia), the judge checks whether the arrest was lawful and whether detention is necessary, and also looks into any mistreatment during the arrest.

There are three possible outcomes. The judge may set the arrest aside when he finds the flagrante arrest unlawful. He may grant pretrial release, with or without bail and subject to precautionary measures, when detention is unnecessary. Or he may convert the flagrante arrest into pretrial detention, the most serious outcome, reserved for situations in which incarceration is needed to protect public order, to safeguard the investigation and evidence-gathering, or to ensure the enforcement of criminal law.

Having a lawyer present at this hearing is decisive. It is the moment to point out defects in the arrest report, argue that detention is unnecessary and ask for release. A prepared defense arrives at the hearing with documents showing a fixed residence, lawful employment and a record of prior history, all of which strengthen the request for release.

Frequently Asked Questions

Who can make an arrest in flagrante delicto?

Any private citizen may detain a person caught in flagrante delicto, and police authorities have a duty to do so. This rule is found in Article 301 of the Code of Criminal Procedure. In practice, however, preparing the arrest report and carrying out the formal steps fall exclusively to the police authority, which records what happened and formalizes the custody.

Does a detainee have to talk at the police station?

No. The right to remain silent is a constitutional guarantee under Article 5, item LXIII. A person may stay silent without that silence being treated as a confession or harming the defense. The practical advice is to provide only identifying information and wait for a lawyer before giving any account of the facts.

How long can a person be held before seeing a judge?

The deadline is up to twenty-four hours, under Article 310 of the Code of Criminal Procedure. Within that period, the detainee must be taken to the custody hearing, where the judge decides whether to set the arrest aside, grant pretrial release or convert the arrest into pretrial detention. Missing this deadline may amount to an unlawful detention that supports a request for release.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.