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.