brief detentions and provisional searches, in order to preserve the principle of legality and to
avoid police abuse and arbitrariness, an objective standard of evidence should be adopted. 120
92.
This is supported by the way in which different jurisdictions have dealt with the
requirements for arrests without a court order or cases of flagrante delicto, which must be
exceptional. Thus, the Constitutional Court of Colombia, when referring to detention by the
police, has indicated that this should be based on objective causes and justified reasons; in
other words, on “factual situations that, even if they do not have the immediacy of flagrante
delicto but rather a relationship to the moment of the actual apprehension, should be
sufficiently clear and urgent to justify the detention.” That court indicated that “[t]he grounds
that justify an apprehension are thus an articulated series of facts that permit it to be
objectively inferred that the individual who will be apprehended is probably the author or a
participant in them.” It also indicated that the detention must be necessary; consequently, it
should be carried out in urgent situations in which a court order cannot be required.
Furthermore, it asserted that the only purpose of this type of detention is to verify briefly the
facts related to the justified grounds for the apprehension or the identity of the individual, so
that it is strictly limited in time and must be proportionate. 121
93.
Meanwhile, the Supreme Court of Justice of the Nation of Mexico has indicated that, to
prove the existence of a reasonable suspicion that justifies carrying out temporary preventive
control, the authority must specify the information (facts and circumstances) he had to
suppose that an individual was committing an unlawful act. That court has also indicated that
this information must comply with standards of reasonableness and objectivity; in other
words, it must be sufficient from the perspective that anyone, from an objective point of view,
would have reached the same conclusion as the authority if he had had that information.
Accordingly, police authorities must provide a detailed explanation in each specific case of the
circumstances of manner, time and place that, reasonably, led them to consider that an
individual had acted “suspiciously” or “evasively” (in other words, that the individual was
probably committing or about to commit an offense, or that he tried to escape). 122
94.
The Supreme Court of Justice of the Dominican Republic confirmed the acquittal of a
defendant considering that the search report was not credible in the absence of a wellgrounded suspicion for his arrest, because “the said report only indicates that, when noting
the presence of the officer, […] the defendant tried to flee, and this reason is not in keeping
with the law as regards the well-grounded suspicion that is required in order to arrest
someone; a situation that converted the action into an illegal means of evidence.”
Consequently, it noted that “the testimony of the officer concerned cannot be considered
credible because it validates an illegal search, as it was not possible to consider that there had
been a reasonably well-grounded suspicion that would have justified the arrest.” In this
regard, the said court indicated that, in order to determine whether, in that specific case,
there were sufficient and reasonable well-founded motives for proceeding to search an
individual, it should be possible that this assessment “be made by any reasonable person
placed in the same circumstances” and should be free of prejudices or stereotypes “to avoid
arbitrariness in the search of an individual.”123
120
Cf. Affidavit made by expert witness Juan Pablo Gomara on March 4, 2020 (merits file, folios 413 to 482).
121
Cf. Judgment No. C/303/19 of the Plenum of the Constitutional Court of Colombia of July 10, 2019.
Cf. Judgment of the Plenum of the Supreme Court of Justice of the Nation of Mexico of March 22, 2018, in
action on unconstitutionality 10/2014 and the joindered case 11/2014.
122
123
Judgment No. 416 of the Supreme Court of Justice of the Dominican Republic of November 11, 2015.
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