Search during Criminal Investigations: Rights, Procedure & Defence
Short Explanation
Searches are carried out to secure evidence or to apprehend suspects. They interfere with the constitutional right to the inviolability of the home (Art. 13 para. 1 GG) and are subject to strict legal requirements: generally, they require a judicial warrant (§ 105 StPO), with exceptions only in cases of imminent danger. The public prosecutor’s office is authorised to request them; in tax criminal proceedings, this is the responsibility of the tax prosecution authority (BuStra), not the tax investigation department, which merely acts as an auxiliary body.
Open Measure & Right to Be Present
A search is always conducted openly: the resident (in rented property, the actual occupant) has the right to be present. Secret intrusions into homes are not permissible.
Types of Searches
1) Search of the Suspect – § 102 StPO
A personal initial suspicion is required. The search may cover the suspect’s home, other premises, their person, and objects they are carrying.
2) Search of Third Parties – § 103 StPO
More restrictive: permissible to apprehend the suspect, trace evidence, or seize specific objects. Concrete facts must indicate that the person, trace, or item is located on the premises. In rare cases, even the physical examination of uninvolved persons may be ordered (narrowly limited).
Search Warrant: Content & Review
A valid judicial order must specify:
- the alleged criminal offence (specific charge),
- the evidence sought (type or category),
- the premises or persons to be searched.
This ensures legality can be reviewed and execution controlled.
Legal Remedies
An appeal against the judicial warrant is possible pursuant to § 304 StPO. Searches of business premises of legal entities may also be ordered, typically based on suspicions directed at natural persons (e.g. members of management).
Defence Strategy During the Measure
Engage a criminal defence lawyer in Frankfurt at the earliest possible stage. In coordination, it may be advisable to hand over certain items voluntarily – but without waiving rights. If serious procedural errors occur, an exclusion of evidence may be possible.
Special Case: Tax Criminal Proceedings – Searches of Offices and Law Firms (Tax Investigation)
- Start & Formalities: The officer in charge identifies themselves and presents the warrant – always request a copy. The warrant should specify type of tax, time period, and allegations. If the adviser themselves is suspected, § 102 StPO applies (early cautioning).
- Scope: Files of a suspect client may be fully searched. Lawyer’s working files may only be inspected to verify rights of refusal. Request sealing if necessary (subsequent decision by the investigating judge).
- Seizure & Record: After completion, an inventory of seized items must be handed over. Important: the record must state “seized” and not “voluntarily handed over”. Professional secrecy and privilege must be respected; sealing should be requested until a court decision.
- Remedies & Objections: Appeal against the warrant; judicial review of execution may also be sought. Document all objections in writing.
Behavioural Checklist During a Search
- Stay calm.
- Remain silent. Do not provide statements or engage in informal conversations.
- Call your defence lawyer immediately. Ask for a short delay until advice is obtained.
- Check and copy the warrant.
- Note identities: names and ID numbers of officials. Employees should only provide personal details, not statements about the matter.
- Do not hide or destroy anything.
- Point specifically only to evidence mentioned in the warrant – limits unnecessary seizures.
- IT/data: request data to be mirrored rather than taken away; copy necessary documents.
- Never hand over documents “voluntarily”. If asked: refuse and have objection to seizure recorded.
- Document everything: questions, instructions, and procedures in writing (employees may also do so).
FAQ: Frequently Asked Questions about Searches
Does the police/prosecutor always need a warrant?
Generally yes – judicial authorisation under § 105 StPO is required. Exception: imminent danger, in which case the prosecution may order.
Do I have to let the officials into my home?
Yes, if a valid warrant is presented. You have the right to be present but do not have to make statements.
Am I allowed to call my lawyer?
Yes, you should contact your criminal defence counsel immediately and request a short interruption until consultation.
Do I have to disclose passwords or PINs?
Never before consulting your defence lawyer. Remain silent and await legal advice.
The warrant seems vague – what should I do?
Object, record the objection, keep a copy. Afterwards, appeal (§ 304 StPO) can be filed for judicial review.
What happens with seized data carriers?
You will receive an inventory. Applications for release or copies are possible; sealing until judicial decision may be requested.
Can unlawfully obtained evidence be excluded?
Yes, if the illegality is serious and outweighs state interests. This is assessed individually after file inspection.
Search of business or law firm premises – special rules?
Yes: copy of the warrant, precision requirements, professional privilege, sealing requests – all must be asserted and documented.
Should I “voluntarily hand over” to finish quickly?
Never without lawyer’s advice. Uncoordinated handover often weakens your defence.
Contact Us – Your Specialist Lawyers for Criminal Law in Frankfurt and Nationwide
- Dr. Caroline Jacob, Criminal Defence Lawyer
- Frank M. Peter, Specialist Lawyer for Criminal Law
- Dr. Sven Henseler, Criminal Defence Lawyer, former Tax Official (Dipl.-Finanzwirt FH)
- Of Counsel: Prof. Dr. Frank Peter Schuster
- Cooperation Partner: Tax Consultant and former Tax Investigator Frank Wehrheim
Our law firm Buchert Jacob Peter has been providing expert criminal defence in Frankfurt for over 25 years. We represent clients throughout Germany with highly experienced defence lawyers.
📞 Phone: +49 69 710 33 330
✉️ Email: kanzlei@dr-buchert.de
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We advise and represent private individuals and companies in investigative and criminal proceedings nationwide and before all courts. Benefit from our many years of experience and our expertise in criminal defense.