Police Seizure and Search
The terms police seizure und search refer to two central measures of law enforcement authorities under German law. They serve to secure evidence, prepare criminal proceedings, and apprehend offenders. These measures are governed by various legal sources and are subject to strict legal requirements to protect the fundamental rights of those affected.
Legal Foundations
Code of Criminal Procedure (StPO)
The relevant regulations for police seizure and search are found in the Code of Criminal Procedure (StPO), in particular in Sections 94 et seq. StPO (seizure) and Sections 102 et seq. StPO (search).
Other Applicable Laws
Besides the StPO, the police and regulatory law of the federal states (e.g., police laws) and the Basic Law (in particular Art. 13 GG – inviolability of the home) may also be relevant. Specific interventions, such as those involving telecommunications data, also require compliance with the Telecommunications Act (TKG) and the General Data Protection Regulation (GDPR).
Definitions and Types
Seizure
is the official taking into custody of an object by the authorities to secure evidence or recover assets derived from criminal offenses.
Seizures can occur openly (with the party being aware) or covertly, and typically concern movable items, documents, as well as data carriers. They may also cover virtual property such as electronic data. Seizure ist die behördliche Inbesitznahme eines Gegenstandes zur Sicherung von Beweisen oder zur Rückgewinnung von aus Straftaten resultierenden Vermögenswerten.
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search
is the official taking into custody of an object by the authorities to secure evidence or recover assets derived from criminal offenses.
Seizures can occur openly (with the party being aware) or covertly, and typically concern movable items, documents, as well as data carriers. They may also cover virtual property such as electronic data. search is the official examination of persons, items, or premises to find evidence, individuals, or objects that may be relevant to criminal proceedings.
A distinction is made between:
- Personal search (Section 102 StPO)
- Residential search (Section 102 StPO)
- Search of other premises and objects (Sections 103, 104 StPO)
Prerequisites and Procedure
search
Reason for the Search
A search may only be conducted if there is an initial suspicion of a criminal offense (Section 102 StPO). The aim is to find evidence (evidence-preserving search), apprehend suspects, secure items, or prevent further offenses. Such suspicion must be based on facts.
Search Warrant
As a rule, a judicial order is required (Section 105 (1) StPO). In cases of imminent danger, the public prosecutor’s office or its assistants (usually police officers) can issue the order. A subsequent judicial decision must be obtained in these cases.
Execution
The measure must be carried out proportionately. The affected persons should be present if possible (Section 106 (1) StPO). A protocol of the measure must be prepared. Higher requirements apply when investigating members of certain professions (e.g. doctors, clergy) to safeguard private secrets (Section 97 StPO).
Seizure
Prerequisites for Seizure
Objects that may serve as evidence in the investigation are subject to seizure (Section 94 (1) StPO). Seizure is permissible if the item is not handed over voluntarily. Seized objects must generally not be destroyed or consumed.
Seizure Order
A judicial order is required if so stipulated by law. Otherwise, the public prosecutor’s office or the police may carry out seizures within their authority. For the seizure of certain objects, in particular materials entrusted to professional secret holders, a judicial order is always required (Section 97 (1) StPO).
Legal Remedies and Protection
Objection and Appeal
Against a police search or seizure, the affected person has the legal remedy of appeal (Section 304 StPO) at their disposal. In this procedure, the competent court reviews the legality and proportionality of the measure.
Subsequent Information and Access to Files
Persons not present during a search must be informed of the measure immediately. Those affected have the right to take action against unlawful measures and, under the conditions of Section 147 StPO, to request access to the files.
Borderlines and Distinctions
Seizure vs. Safeguarding
is the official taking into custody of an object by the authorities to secure evidence or recover assets derived from criminal offenses.
Seizures can occur openly (with the party being aware) or covertly, and typically concern movable items, documents, as well as data carriers. They may also cover virtual property such as electronic data. Safeguarding is the forced removal of an object by the police to avert a danger (public safety law). The Seizure on the other hand, primarily serves law enforcement purposes.
Search vs. Viewing
Not every official inspection constitutes a search within the meaning of the StPO. Mere viewing without targeted searching for objects or evidence does not meet the definition of a search.
Special Scenarios
Search and Seizure Regarding Professional Privilege Holders
The search and seizure of files and data from professional privilege holders (such as doctors, Rechtsanwalt, or clergy) are subject to particularly strict requirements (Sections 97, 160a StPO). Their susceptibility to seizure is limited if the materials serve solely to protect secrets that are subject to professional confidentiality.
Digital Evidence
The securing and evaluation of electronically stored data constitute a separate area. Seizure of digital devices or data is subject to the same procedural requirements. Even the mere copying of hard drive contents can be considered a seizure.
Consequences and Legal Protection in Case of Illegality
In the event of a unlawful seizure or search claims for damages may arise (e.g., under the Act on Compensation for Measures of Criminal Prosecution, StrEG). Unlawfully seized items must also be returned. Affected persons may also file an official complaint or a constitutional complaint with the competent authorities.
Literature and Further Regulations
- Sections 94-111 StPO (Seizure and Search, Investigative Measures)
- Section 13 GG (Inviolability of the Home)
- Police Laws of the Federal States
- Act on Compensation for Measures of Criminal Prosecution (StrEG)
Conclusion
Die police seizure and search are essential investigative tools in criminal proceedings. They serve effective law enforcement but are subject to strict statutory, particularly constitutional, requirements. Legal remedies are available to those affected for defense and review of possible infringements. Legally compliant handling of these state measures is of fundamental importance for safeguarding the rights of all parties involved in the proceedings.
Frequently Asked Questions
What requirements must be met for a police search?
A police search constitutes an interference with the fundamental rights of the person concerned, especially the right to inviolability of the home (Art. 13 GG) and the right to informational self-determination. As a rule, a judicial order is therefore required for the search (Section 105 StPO), unless there is imminent danger, in which case the public prosecutor’s office or police may exceptionally act on their own authority. The search may be conducted either for the purpose of finding evidence (Section 102 StPO, search of the accused) or for apprehending the accused (Section 104 StPO). In any case, there must be an initial suspicion within the meaning of Section 152 (2) StPO, i.e. sufficient factual indications of the existence of an offense. The order must precisely specify the purpose of the search and the premises or persons to be searched. Furthermore, the principle of proportionality applies: the search may only be ordered if less intrusive measures are insufficient and the intrusion is not disproportionate to the seriousness of the offense and the importance of the case.
What must a seizure order contain and what documentation obligations exist?
A lawful seizure order must specify the particular object to be seized, explain the circumstances and legal basis, and name the affected person. It must also state the essential reasons why the items may be of evidentiary importance for the criminal case (Section 94 StPO). The police must provide the affected party, upon request, with a copy of the order and a list of the seized items (Section 107 StPO). All measures must be documented comprehensively, specifying in particular the exact time, execution, involved officers, and persons present. Errors in documentation can render the measure unlawful and lead to rules of evidence exclusion.
When may the police seize items without a judicial order?
Without a judicial order, the police may only seize items if there is imminent danger (Section 98 (1) StPO). Imminent danger exists when waiting for a judicial order would jeopardize the purpose of the measure, for example, if evidence could otherwise be removed, destroyed, or altered. The term is interpreted narrowly; mere workload or the absence of a judge is not sufficient. In such cases, the public prosecutor’s office—or, if unavailable, its assistants (i.e., the police)—must order the seizure but must then immediately submit the decision to a judge for confirmation.
What rights do affected persons have during a search or seizure?
Affected persons have the right to be present during the search and seizure, unless this would compromise the purpose of the measure or is impossible for factual reasons (Sections 106, 107 StPO). In addition, a neutral witness must be involved if the affected person is not present during the search. The person must be informed of their rights, including the right to refuse testimony (Section 52 StPO), the right to appeal (Section 304 StPO), and the right to legal assistance. In the case of a seizure, the person is entitled to an official record of the items secured and may file an appeal against the measure.
How and under what conditions can one challenge a seizure or search?
The primary remedy against a police search or seizure is an appeal under Section 304 StPO. This can be filed with the competent court and generally does not have suspensive effect, meaning the measure will continue and the seized items will remain in official custody for the time being. In cases of serious procedural errors (such as a missing order without justification by imminent danger) or lack of proportionality, the measure can be lifted or limited in appeal proceedings. In addition, in cases of threatened irreversible loss of rights, it is possible to submit an urgent application for interim legal protection.
What happens to seized items and when are they returned?
Seized items are kept in official custody until a final decision is made regarding their evidentiary value or confiscation (Section 98 (2) and (4) StPO). As long as there is a reason for seizure, they remain in state custody. Items are to be returned when they are no longer needed for the criminal proceedings or if the seizure is lifted for legal reasons. If the affected person opposes the return, for example by refusing to accept the items, they will be deposited. If return is impossible—for example, if the item no longer exists—the affected person may be entitled to compensation under the rules of state liability.
