Cases with House Searches
The public prosecutor’s office can order police searches of houses for the purpose of obtaining evidence for criminal proceedings. House searches are regulated by §§ 102 & 103 StPO (Code of Criminal Procedure) and it refers to both the seizure of suspects and the seizure of evidence. The house search can take place on the premises of the suspect or also of a third party. House searches can also take place at night, under certain conditions, as regulated by § 104 StPO.
A house search can have serious consequences, for example, a company may have to stop work as a result of a house search or if working materials are confiscated in the course of the house search and can therefore no longer be used. These are serious consequences and therefore, there is no carte blanche on the part of the state in these matters.
During a house search confrontations often arise between those whose house is searched and the forces responsible for the search. This can lead to further problems. For example, misconduct on the part of the accused can have direct negative effects on the further course of the proceedings and this can be difficult for the criminal defence lawyer to correct afterwards. It can also happen that the defendant waives his or her rights during the house search. We would therefore like to provide you with some tips on how to behave in order to prevent these errors from happening to you. As already mentioned, a party’s behaviour during the house search is frequently of importance for the entire subsequent procedure.
Eight Steps to Follow:
Here we have listed eight steps to consider if you find yourself facing a situation of a house search and police seizures in a criminal law case. As has been noted earlier, the main consideration to remember is that availing of legal representation is key in this matter. Our criminal law team at Schlun & Elseven have the necessary knowledge of criminal law and criminal procedure law to provide you with comprehensive legal assistance.
1. What is the Correct Way to Behave in the Event of a House Search?
The most important thing is that you remain calm and do not resist while the search is taking place. Resistance actions can be held against you in the later procedure. In the worst-case scenario they can even result in new criminal proceedings. This can occur in cases involving, for example, verbal threats against civil servants or physical resistance. You should, therefore remain calm and controlled to keep track of what is happening. Doing so can result in decisive advantages. Ask those searching to show their warrant because if this is missing it can be a serious error on the part of the police.
Furthermore, it is advisable to keep an eye on the actions of the officials. Take notes if necessary. Under certain circumstances, you may also be able to cite the officials’ misconduct after the fact. Ask the head of operations to show you their service card and make a note of their name and any other details.
2. Have the Search Warrant Presented to You
You must have the search warrant presented to you, preferably as a copy that you keep in your own records. The search warrant will give you the reasons for the search and you can get an idea of why you are under suspicion. This also makes it clear what the officers are looking for, for example, if they are looking for data on certain USB memory sticks or hard drives, you can ensure that the house search is limited to these items. You can show the officers what they are looking for. By cooperating with them, you can prevent other findings that can negatively impact the procedure or lead to new procedures.
3. Don’t Make a Statement During the House Search
Under no circumstances should you make a statement during the search. Even if you are under pressure and hope to clear the matter up by making a statement, you should not comment on the allegations. State your personal details. If the officials give the impression that this is an informal conversation that will not get out, it will still be used in the proceedings against you. The golden rule is: be careful what you reveal.
This rule also applies to your staff. They should also remain silent because any employee’s statements may later be considered a witness statement. This is also potentially to the employees’ benefit as by not making a statement they are not leaving themselves open to being charged later as an accessory to a criminal offence. They should be informed that no statement will be made without first consulting a lawyer.
4. Contact a Lawyer
Inform a lawyer as soon as possible after the start of the house search. §137 StPO grants you legal assistance in every aspect of the proceedings. This makes sense for several reasons. On the one hand, a suitable criminal defence lawyer can directly assist you with tips and thus avert negative consequences. On the other hand, it is also possible for your defence lawyer to talk to the head of operations on the telephone. Moreover, this enables the lawyer to get an initial overview of the house search and it warns the police to complete the search and seizure legally.
Ideally, the lawyer will come directly to the scene, but the officials have no obligation to wait for your lawyer. You can, however, while waiting for your lawyer, ask the remaining officers to show their IDs and ask about the task of each officer during the house search. Doing this may buy you time.
In case of a house search you can contact Schlun & Elseven 24 hours a day, we will help you with our experience to make the situation as favourable as possible for you. Save this number: +49 221 93295960. We are available to you as a lawyer for house searches all over Germany.
5. Cooperate as Much as Possible
Basically, the principle that you should remain calm applies here again. Under no circumstances should you try to make files disappear, delete data or destroy evidence in any other way during the house search. If you should attempt this, then you could be remanded in custody due to suppression of evidence. Our main advice is to try to cooperate with the officials as far as possible – without incriminating yourself. Good behaviour may be advantageous for you later. At the same time, it is noteworthy that there is no legal obligation on your part to cooperate.
6. Object to Seizures
If the officials want to seize your possessions or other items, you object, do not declare your consent. This will not prevent the items from being taken, but it will turn a simple seizure into a confiscation. The consequence of this action is that the case will then have to be referred to the investigating judge. Consequently, they will then have to decide on the necessity of the seizure. Under those circumstances, the judge’s decision can then be challenged by your defence counsel in later proceedings.
Make sure that all confiscated items are recorded in the search report, just as you must make sure that the objections against the seizure are noted there. In addition, have a copy of the report handed over to you at the end of the search. Subsequently check the accuracy again and make sure your objection is clearly marked on the report.
7. Copy Records
If possible, copy the files or documents before they are confiscated. This action will give you the advantage of having the possible evidence that will be used against you at home and this will allow you to be better prepared. As a rule, however, this right can only be successfully enforced with a lawyer, as he is familiar with the procedure for a house search and can thus better influence the officials. You should therefore contact a lawyer in the field house searches and police seizures directly.
8. Behaviour After the Search
At the latest you should contact a lawyer in the aftermath of the search. In this instance you need a lawyer with specialist knowledge of criminal law and criminal procedure and particularly in search & seizure. The lawyer can then immediately initiate all legal steps necessary in order to quickly influence the further course of the proceedings. At Schlun & Elseven, we are at your disposal in Aachen, Cologne, Düsseldorf and the surrounding area.
Even after the search, the right legal assistance can correct any mistakes you may have made during the house search in order to guarantee the best result for you in the criminal proceedings. So don’t wait until the public prosecutor’s office reports after a search, take direct action. This can bring you decisive advantages. Contact a lawyer immediately for further counsel and representation.