TEST FISHING THROUGH SEARCH AND SEIZURE OF CELL PHONES, THE LEGALIZATION OF ARBITRARINESS

Abstract

This article focuses on the practice of "fishing expeditions" (probatory fishing) in the context of breaching telecommunications secrecy following the search and seizure of smartphones. The study aims to analyze the legality of this procedure, questioning whether this indiscriminate data collection—lacking legal standards or proper justification, particularly in high-profile cases involving public figures. In the current legal system, the protection of fundamental rights, enshrined in the Federal Constitution, is tied to constitutional principles and provisions that ensure their effectiveness. The data collected in fishing expeditions often pertains to past crimes, and its indiscriminate use jeopardizes constitutional guarantees, such as the presumption of innocence and the privacy. Thus, the objective of this article is to understand the limits for breaching smartphone secrecy following search and seizure, ensuring that this measure does not open the door to abuses of power and violations of individual rights. This research is relevant in both academic and social spheres, as there has been an increase in law enforcement operations employing this practice, while legal doctrine has contributed little to the discussion.