An in-flagrante arrest usually happens suddenly, without warning, and it's natural for the arrested person's family to feel lost about what to do in the first few hours. This guide explains what an in-flagrante arrest is, what happens at the police station right afterward, and what steps to take immediately.
What is an in-flagrante arrest
An in-flagrante arrest (prisão em flagrante) occurs when someone is arrested in one of the following situations provided for in the Code of Criminal Procedure:
- The person is committing the crime at the moment of arrest;
- The person has just committed the crime;
- The person is pursued, shortly after the crime, by the police, the victim or any other person, in circumstances indicating they are the perpetrator;
- The person is found, shortly after the crime, with instruments, weapons, objects or documents that suggest their involvement in the act.
Anyone can carry out an in-flagrante arrest (known as a discretionary flagrante), while police authorities have a duty to do so when they witness or become immediately aware of the situation (mandatory flagrante).
What happens at the police station
After being taken to the police station, the police authority must draw up the arrest report (auto de prisão em flagrante), a document that formalizes the arrest and gathers the statements of witnesses, the victim (when applicable) and the arrested person, if they choose to speak. At this point, some rights are especially important:
- The right to have the arrest immediately reported to family or a person designated by the arrested person, and to the competent judge;
- The right to be assisted by a lawyer throughout the entire procedure, including during police interrogation;
- The right to remain silent, without this being interpreted as a confession or used against the arrested person;
- The right to a forensic medical examination (exame de corpo de delito), if there are signs of assault or mistreatment during the approach or the arrest;
- The right to receive the notice of charges (nota de culpa) — a document stating the reason for the arrest and the names of those who ordered it — within 24 hours.
Proper, improper and presumed flagrante
Legal scholars usually distinguish three types of flagrante: proper flagrante (the person is caught committing or having just committed the crime), improper flagrante (the person is pursued shortly after the act), and presumed or constructive flagrante (the person is found, shortly afterward, with objects indicating their involvement). This distinction can be relevant for discussing the legality of the arrest in each specific case.
The validity of an in-flagrante arrest depends on strict compliance with the legal requirements — procedural deviations can support a request to have the arrest declared unlawful and the person released. [CASE LAW TO CONFIRM]
What to do immediately
- Try to identify which police station the person was taken to;
- Hire or contact a lawyer as soon as possible — they can be present when the arrest report is drawn up and advise on what to say or not say;
- Avoid having the arrested person give a detailed statement before speaking with the lawyer;
- Gather information about what happened, witnesses and any evidence that may be relevant to the defense;
- Wait for notice of the custody hearing, which usually takes place within 24 hours.
What comes after the flagrante
An in-flagrante arrest is an initial measure — it will be subject to judicial review at the custody hearing, when a judge will assess its legality and decide whether the person will remain in custody, with or without precautionary measures, or be released. A lawyer's involvement at this stage is decisive for presenting the applicable technical arguments.