Searches in Criminal Law and Tax Criminal Law

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

The police are at your door at 6 a.m. with several officers wanting to search your home. In the worst case, you have been woken up from bed and are unsure how to act and what rights you have in the event of a search.

A search is, in most cases, an extremely unpleasant situation and often comes unexpectedly for those affected. It’s important to stay calm. We will explain what a search is, the legal requirements that must be met for your home to be lawfully searched, and inform you of the basic behaviors you should observe.

What is a Search?

A search is a targeted search for people, evidence, or objects. The objects of a search can be premises, items, or even individuals. As a common procedural measure in criminal law, it serves to prevent crimes or to investigate already committed offenses.

Due to its highly intrusive nature into the privacy of those affected, certain legal conditions must be met for a search to be conducted lawfully.

Who Can Order a Search?

Primarily, a judge has the authority to order a search (§ 105 S. 1 StPO). The requirement is that the scope, limits, and objective of the search are clearly defined in the order and that the judge is convinced of the proportionality of the search.

The judicial reservation can be overridden if there is imminent danger. Imminent danger exists if the order cannot be obtained without jeopardizing the purpose of the measure.

The justification for imminent danger must meet high standards. There must be specific and case-related facts. Furthermore, an attempt to contact a judge must have failed. If these conditions are met, the authority to order the search transfers to the public prosecutor and investigating officers (§ 105 Abs. 1 S. 1 StPO). If the search is conducted at premises of other persons according to § 103 StPO, only the public prosecutor has the urgency competence as per § 105 Abs. 1 S. 2 StPO.

Additionally, the tax authorities’ criminal and fine departments can utilize the search instrument if there is an initial suspicion of a tax crime, such as tax evasion according to § 370 AO. If there is imminent danger, the tax investigation department can independently order a search under strict conditions. In all other cases, a judicial search warrant is necessary.

Types of Searches

There is a distinction between searches at the suspect’s premises (§ 102 StPO) and searches at other persons’ premises (§ 103 StPO).

A search at the suspect’s premises under § 102 StPO is permitted either to apprehend the suspect (apprehension search) or to find evidence (investigation search).

Additionally, there is a distinction between the search of the suspect’s dwelling and other premises (e.g., garage, vehicle, business premises) and the search of the person (e.g., clothing). The search of the person does not include internal body searches, which are governed by §§ 81a ff. StPO.

For a search at the suspect’s premises, there must be specific suspicion. A search cannot be conducted to establish suspicion.

Moreover, the search must be conducted openly, i.e., visibly. Thus, covert “online searches” based on § 102 StPO are not lawful. These fall under the more specific authority of § 100b StPO.

Searches at other persons’ premises under § 103 StPO are subject to stricter requirements.

According to § 103 Abs. 1 S. 1 StPO, a search at other persons’ premises is only permissible to apprehend the suspect, to follow traces of a crime, or to seize specific items.

There must also be facts indicating that the person, trace, or item sought is in the premises to be searched. Mere assumptions are not sufficient (exceptions in § 103 Abs. 1, S. 2, Abs. 2 StPO).

Person searches are also generally permitted under § 103 StPO.

When Can a Search Be Conducted?

Searches are restricted to daytime hours (§ 104 StPO). They can be conducted between 6 a.m. and 9 p.m. A nighttime search (9 p.m. to 6 a.m.) is only allowed in a narrow scope, such as pursuing a suspect caught in the act.

Typically, searches occur in the early morning hours to prevent the suspect from disposing of evidence in advance, thereby hindering the investigation.

What is a “Durchsicht” (Review)?

§ 110 StPO allows for papers in the custody of the suspect to be reviewed to determine whether they should be returned or seized. If immediate review (due to volume, for example) is not possible, the papers can be taken. This also applies to electronic storage media (§ 110 Abs. 2 StPO).

How Are Incidental Findings Treated?

Incidental findings are another special case. These are items that suggest other crimes. For example, an illegal weapon found during a drug search. Such an incidental finding can be temporarily seized according to § 108 StPO and is admissible as evidence. However, the police are not allowed to intentionally search for incidental findings.

How Should You Behave During a Search?

If you are subject to a search, you should observe the following behaviors:

1. Stay Calm
   • The most important thing is to stay calm. Allow the investigators to enter (open the door if they ring to prevent them from calling a locksmith or forcibly opening the door) and simultaneously state verbally that you do not consent to any of the measures.
2. Check the Search Warrant and Identification
   • Ensure you check the search warrant and the investigators’ IDs. Pay particular attention to the addressee, reason, scope, and justification for the search. This can provide clues for potential formal illegality.
3. Contact Your Lawyer
   • Contact an experienced criminal or tax criminal lawyer as soon as possible, preferably during the search. They can protect your rights, check the legality of the search, and assist you either by phone or in person during the search.
4. Cooperate with the Investigators
   • Do not resist or obstruct the search, such as by hiding evidence. This only increases the risk of temporary arrest.
5. Do Not Make Any Statements
   • Exercise your right to remain silent. Do not make any statements regarding the allegations—whether as a suspect or witness. These can be used against you later.
   • It is important not to sign anything, including the seizure protocol. Insist on your right to refuse a signature.
   • Often, mobile phones are seized as evidence for data examination. Do not provide passwords or PINs for your mobile phone or other seized devices.
   • You are only required to passively tolerate a search, not to actively assist in the search of your home or person.
6. Take Notes
   • Be a passive observer and take notes on the proceedings.
7. Request Copies
   • Request to make copies of important documents, such as those needed for your business, before they are seized.
8. Review the Search Protocol
   • Demand a copy of the search protocol and review it.

If you have any questions about searches or are subject to a search, it is best to contact our law firm Mügge, Dr. Pitschel & Partner immediately.

We advise and represent individuals and companies in all areas of criminal and tax law. With our many years of experience in criminal and tax law, we are adept at dealing with investigative authorities and can provide you with optimal support—even during an ongoing search.

In the event of a search, we stand by your side and develop the best possible defense strategy with you. We will also discuss whether it makes sense to file a complaint against the search and help you retrieve your documents, computers, and mobile phones as quickly as possible.

If you have any further questions or are a suspect in a criminal or tax (tax criminal) case, please feel free to contact us.