Search under the Code of Criminal Procedure: What you need to know

How to behave correctly when the police are at your door?

The police are at your door at 6 AM with several officers, wanting to search your home? In the worst case, you’ve been woken up and now don’t know how to react or what rights you have in the event of a search.

In most cases, a search is an extremely unpleasant situation and usually occurs unexpectedly for those affected. It is important to remain calm. We explain what a search is, what legal requirements must be met for your home to be lawfully searched, and inform you about the fundamental behaviors you should observe.

What is a Search?

A search is the targeted seeking of persons, evidence, or objects. The object of a search can be premises, items, or even persons. As a common measure in criminal procedure, it serves either to apprehend a suspect or to secure evidence within the framework of criminal proceedings. Searches typically occur in connection with police investigations or in tax criminal law.

Due to their extremely intrusive impact on the privacy of those affected, certain legal conditions must be met for a search to be conducted lawfully.

Who may order a search?

Generally, only a judge may order a search (§ 105 para. 1 StPO). The order must contain specific details regarding the purpose, scope, and objective of the search to be lawful.

Exception – Danger in Delay: If there is danger in delay, the search may exceptionally also be carried out by the public prosecutor’s office and – upon their order – by their investigating officers (§ 105 para. 1 sentence 1 StPO). Strict conditions apply here – among other things, the attempt to obtain judicial approval must have failed.

In addition, criminal and fine departments of the tax office may also use the instrument of search if there is initial suspicion of a tax offense, such as tax evasion under § 370 AO. If there is danger in delay, the tax investigation unit can independently – under strict conditions – order a search. In all other cases, a judicial search warrant is necessary.

What types of searches are there?

1. Search of a Suspect (§ 102 StPO)

A distinction is made between:

• • Apprehension search, where the goal is to locate or arrest the accused.
  • Investigation search, where the goal is to find evidence.

Affected parties may include:

• • the residence or other premises (garage, vehicle, business),
  • the person themselves – such as clothing, bags, body surface.

Internal bodily interventions – such as blood samples – do not fall under the definition of a search within the meaning of § 102 StPO, but require a separate judicial order (§ 81a StPO).

2. Search of Third Parties (§ 103 StPO)

If the search is conducted on non-accused persons, such as friends, business partners, or family members, particularly strict requirements apply.

Facts must exist from which it can be concluded that the person, trace, or item sought is located in the premises to be searched. Thus, mere assumptions are not sufficient (exceptions in § 103 para. 1, sentence 2, para. 2 StPO).

A “search of persons” is also permissible in these cases (§ 103 StPO) if it is related to the finding of evidence.

Search in Tax Criminal Law

Searches are also a frequently used measure in tax criminal law – for example, in cases of suspected tax evasion (§ 370 AO). The tax investigation unit is usually responsible.

Tax investigators are also permitted to search residences, but a judicial search warrant is generally required for this. Only in cases of danger in delay can the tax investigation unit act independently.

Special Case: Online Search (§ 100b StPO)

An online search refers to the covert intrusion into IT systems (e.g., laptops, smartphones, or cloud services) by state investigators. This measure is particularly intrusive and only permissible under strict conditions.

It may only be carried out in cases of particularly serious crimes and with judicial approval. An online search is not a “secret access” within the framework of a classic residential search under § 102 StPO.

What is an inspection?

During a search, documents, files, and data carriers (e.g., USB sticks, laptops) may also be inspected to determine whether they should be seized (§ 110 StPO).

If immediate inspection is not possible – for example, due to the volume – documents or storage media may be taken for later review. This also applies to electronic storage media (§ 110 para. 2 StPO).

How are incidental findings to be assessed?

Incidental findings constitute another special case. These are objects that indicate the commission of other criminal offenses.  

Example: During a search for narcotics, an illegal weapon is found, for instance. This incidental finding can be secured under § 108 StPO – even if it was not part of the original search purpose.

However, such “incidental findings” may not be specifically sought.

How does a search proceed?

The search is limited to daytime hours (§ 104 StPO). It may therefore be conducted within a timeframe between 6 AM and 9 PM. A search at night (9 PM to 6 AM), however, is limited to a narrow scope of application, such as in the pursuit of an offender caught in the act.

In practice, there is often an element of surprise – to prevent the destruction of evidence. Precisely for this reason, it is important that those affected know their rights and behave correctly.  

How to behave correctly during a search?

The police are at your door at 6 AM with several officers, wanting to search your home. In the worst case, you’ve been woken up and now don’t know how to react or what rights you have in the event of a search.

You should observe the following behaviors:

1. 1. Remain calm
      Open the door, but clearly state that you do not consent to the measure.
   2. Check the warrant
      Have the search warrant and service IDs shown to you. Check the name, address, scope, and justification.
   3. Contact a lawyer
      Immediately call an experienced criminal defense lawyer or tax criminal law specialist – even during the measure.
   4. Cooperate – but remain silent
      Do not resist, do not remove any items, but do not make any statements about the matter!
   5. Do not sign anything!
      Not even the seizure protocol. Refer to your right to remain silent.
   6. Do not disclose passwords
      You are not obliged to provide PINs or access data.
   7. Document the events
      Note down procedures, the behavior of investigators, timings, and seized items.
   8. Check: Objection to the search
      On the search protocol, check the box indicating your objection to the search and seizure.
   9. Take the search protocol with you
      Request a copy and review it carefully.

You are obliged to passively tolerate – not actively cooperate.

Your Rights During a Search

Searches represent a profound intrusion into fundamental rights – whether in general criminal law or tax criminal proceedings. [Only those who know their rights and act prudently can effectively defend themselves.]

When in doubt: remain silent, contact a lawyer, do not actively cooperate.