Definition and legal framework of a search of premises
Die Search of premises (also known as a house search) is an official measure to locate evidence, persons, or objects at a specific location, usually in private or business premises. Its primary purpose is criminal prosecution as well as hazard prevention and is subject to strict legal requirements. The legal basis and conditions under which a search of premises is permissible in Germany are set out in particular in the Code of Criminal Procedure (StPO), the Basic Law, as well as in various supplementary laws.
Legal basis and requirements
Search of premises in criminal proceedings
Statutory provisions
The prevailing provisions for searches of premises in criminal proceedings are set out in Sections 102 to 110 of the Code of Criminal Procedure (StPO). They distinguish between searches involving suspects (Section 102 StPO) and those involving third parties (Section 103 StPO).
Requirements for a search
A search of premises may only be ordered if there is an initial suspicion and concrete indications of the presence of evidence, suspects, or items to be secured. The measure must be proportionate, meaning its purpose must not be disproportionate to the severity of the offence or to the infringement of fundamental rights.
As a rule, a search of premises requires a search warrant issued by a judge (Section 105 (1) sentence 1 StPO). Exceptions are only permitted in cases of imminent danger, that is, when obtaining a judicial order would compromise the purpose of the measure.
Distinction: Suspect and third parties
The search of premises involving a suspect serves to apprehend the suspect or to locate evidence. Searches of third parties are only permissible if there are facts indicating that the sought persons, objects or traces are present there (Section 103 StPO). The protection of third parties is thereby particularly emphasized.
Form and execution
A search is to be carried out in the presence of the owner of the premises or a person designated by him (§ 106 (1) StPO). The person summoned serves as a witness to the procedure. A written record of the search must be made (§ 107 StPO), documenting all significant circumstances.
Constitutional protection
Inviolability of the home
The Basic Law protects the inviolability of the home in Article 13 of the Basic Law. Every search constitutes a serious interference with this fundamental right and is only permissible based on a law and with a judicial order. Article 13 (2) of the Basic Law clarifies the requirement for a judicial order as a general prerequisite.
Proportionality and judicial oversight
Every official measure must comply with the principle of proportionality. This means that less intrusive means must be preferred and the intervention restricted to what is necessary. Judicial control is intended to protect against unlawful or arbitrary searches.
Search of premises outside criminal proceedings
Searches of premises can also be required outside criminal proceedings, for example for hazard prevention under police law. In such cases, the prerequisites are governed by the respective police laws of the federal or regional states and generally require an imminent danger to life, limb or significant legal interests.
Procedure of a search of premises
Preparation and ordering
The order is issued on the basis of a judicial search warrant stating the purpose, objective and rooms to be searched. In exceptional cases, the public prosecutor’s office or police can order the search of premises themselves if there is imminent danger.
Execution
The search is usually carried out in the early morning hours. The authorities involved must identify themselves at the beginning and state both the reason and the underlying order. The owner of the premises or authorized persons have the right to be present during the measure.
Seizure and confiscation
Objects that may be of potential evidentiary significance found during the search may be confiscated (§ 94 et seq. StPO) or secured. A record must be made of each seizure and provided to the affected person.
Rights and obligations of affected persons
Obligations to tolerate and cooperate
Affected persons are obliged to tolerate the search, but are not required to actively cooperate. They do not have to make statements regarding the facts of the case or business activities.
Legal remedies and review of the measure
The remedy of complaint (§ 304 StPO) is available against the order and execution of a search of premises. Measures such as the seizure of objects may also be reviewed by means of a complaint.
File inspection and information
Affected persons may subsequently apply for inspection of files to verify the legality of the measure and, if necessary, to defend themselves.
Special features and exceptions
Subsequent judicial approval
In cases of imminent danger, subsequent judicial approval is required to ensure the legality of the measure and to adequately safeguard fundamental rights.
Persons bound by professional confidentiality and special protected areas
Premises belonging to persons bound by professional confidentiality (for example, medical facilities, press companies) are subject to stricter requirements. Searches in such cases are only permissible under strict conditions and often require the presence of a witness or a supervisory authority.
Restriction for nighttime hours
Searches of premises may not generally be conducted at night (§ 104 StPO), unless it is absolutely necessary for the pursuit of serious criminal offences or the prevention of significant danger.
Consequences of an unjustified search of premises
If a search of premises is unlawful, this can lead to the inadmissibility of evidence obtained during the search (so-called exclusionary rule for evidence). In addition, affected persons may, under certain circumstances, make claims for damages and compensation.
Conclusion: The search of premises is a central investigative tool for law enforcement and hazard prevention, allowing far-reaching interventions in the fundamental rights of those affected. This measure is subject to strict legal limits which are in particular prescribed by the Basic Law, the Code of Criminal Procedure, and supplementary specialized laws. To ensure legality, judicial oversight and compliance with proportionality are of crucial importance.
Frequently asked questions
Who is authorized to order and carry out a search of premises?
In principle, a search of premises may only be carried out by the competent investigative authority, usually the police or public prosecutor’s office. However, the order for a search of premises generally requires a judicial decision, since it constitutes a significant interference with fundamental rights, especially the fundamental right to inviolability of the home as set out in Article 13 of the Basic Law. Only in cases of ‘imminent danger’—that is, if the purpose of the search would be thwarted or significantly impeded by obtaining a judicial order—may the public prosecutor or their investigators exceptionally order the search of premises themselves (Section 105 (1) sentence 1 second half-sentence StPO). The execution of the search then lies with the police, who should always call in at least one witness who is not part of the search team (for example, a municipal official or neighbor).
What are the requirements for a lawful search of premises?
Certain requirements must be met for a lawful search of premises. First, there must be a specific initial suspicion that an offence has been committed and that evidence, the perpetrator or accomplices can be found through the search. This suspicion must be based on specific factual circumstances and may not rely solely on mere assumptions. Furthermore, the search must be proportionate; in other words, the state’s interest in solving the crime must outweigh the person’s interest in the inviolability of their home. Finally, the search warrant must specify the offence being investigated and the premises to be searched. In cases of imminent danger, the reasons for this must be specifically documented.
Are there exceptions to the requirement for a judicial search warrant?
Yes, an exception to the so-called judicial reservation exists in cases of imminent danger. This is the case whenever the purpose of the measure—such as the discovery of evidence—might be compromised by the time taken to obtain a judicial search warrant, for example, because evidence might be destroyed or removed. In these cases, the public prosecutor’s office or its assistants (e.g. police officers) may order a search. However, the lawfulness of the measure must still subsequently be reviewed by a judge. The requirement of clear and comprehensible documentation is particularly important in these cases, as the interference with fundamental rights occurs without prior judicial review.
Must residents be informed of their rights during a search of premises?
Yes, the officers conducting the search are obliged to inform the resident of their rights, insofar as this appears possible and reasonable. The most well-known rights are the right to be present during the search and the right to have witnesses attend the search (§ 105 (2) StPO). The affected person may take notes and comment on the reasons and scope of the search while it is underway. In addition, they have the right, especially in cases of seizure of objects, to request that items be sealed, for example if documents or data carriers are involved that are subject to confidential professional obligations (e.g. Rechtsanwalt, doctors, journalists).
What may be searched and seized during a search of premises?
The search should, in principle, be limited to the premises and persons specified in the search warrant. However, it may extend to any rooms where a connection to the suspected offence or the presence of evidence can be assumed. Only objects that are relevant as evidence in criminal proceedings or that might be subject to a judicial sealing procedure—should a request for sealing be made—may be taken (seized). It is not permissible to take objects that are obviously unrelated to the offence or subject to a seizure ban.
What rights does the affected person have during and after a search of premises?
During the search, affected persons are generally allowed to be present to observe the search and document possible legal violations. They may request the assistance of a Rechtsanwalt. Upon request, they must be provided with a copy of the search warrant and a search record listing all key measures taken and objects seized. After the search, the affected party may have the legality of the measure reviewed by the court (right of complaint under Section 304 StPO). They also have the right to object to seizures or to file a motion for a judicial decision (Section 98 (2) StPO).
How must officers proceed during a search of premises?
Police officers must conduct the search ‘with due care’ and in particular avoid providing unauthorized third parties with knowledge of the search, if possible. They must ensure that no unnecessary damage is caused and may only use the force necessary. Doors and locks may only be forced open if access is not granted voluntarily. The process of the search must be documented in detail, and the resident must be informed of all measures taken. On request, a detailed protocol including a list of all seized objects must be provided.
