A house search may normally only be carried out with a warrant issued by an investigating judge. To this end, the courts must ensure that a judge is always available between the hours of 6 a.m. and 9 p.m. Searches that are carried out at night, however, are tricky special cases.
Does a judge have to be on call at night?
Whether this means that a judge has to be available at night depends on whether there is a concrete need. There is no need if it is only necessary to contact an investigating judge “in exceptional cases”. Whether there is a concrete need is a matter for the competent court presidiums to decide.
Public prosecutor’s office can issue a warrant for a house search itself
In exceptional cases, the public prosecutor’s office itself can also issue a warrant for a search. However, the fundamental right of inviolability of the home and the requirement that the issue of search warrants be reserved for judges requires a narrow interpretation of such exceptional cases.
One such exceptional case can be assumed, for example, if there are exigent circumstances. In practice, however, the public prosecutor’s offices often order night-time searches on the basis of an alleged imminent danger without first attempting to reach a judge, as the judge is usually not available at night anyway.
”Exigent circumstances” not a carte blanche
It is precisely this approach that the German Federal Constitutional Court has criticized in a recent court decision. In this case, the public prosecutor’s office had initiated a nightly search of the home of the person concerned on suspicion of drug possession without first applying for a court order. In order to ensure that the judges’ exclusive right to issue search warrants is upheld and that the public prosecutor’s offices cannot always take the “exigent circumstances” route, court presidiums will in future have to carefully examine whether a nightly on-call service is necessary.
House search was unlawful – what happens now?
This means that if the public prosecutor orders a nightly search without first at least trying to reach the court, the search is unlawful. The evidence that the officers were able to gather during this search may therefore be subject to an exclusion of evidence in court.
In addition, the person concerned may be entitled to lodge official liability claims against the officers concerned. A thorough examination of the procedure the police and the public prosecutor’s office followed in order to obtain the evidence can lead to findings that can be used by the defence counsel in criminal proceedings to the benefit of the suspect.
Legal advice on house searches
If a house search has already taken place or if the officers are currently at the door to carry out a house search, the person concerned should immediately contact a criminal defence attorney to discuss how to proceed. Although a house search cannot usually be averted, those concerned often make mistakes during the course of the search, which are difficult or impossible to rectify later on in the criminal proceedings. You can easily contact us at +49 (0)69 76 75 77 80 or firstname.lastname@example.org.