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House search – what to do? Your criminal lawyers from TWP in Hamburg will clarify

If your apartment, house, or business premises are searched, the most important first step is to remain calm. As a criminal law firm in Hamburg, we understand how stressful such situations can be. A search represents a significant invasion of privacy and should be carefully reviewed from a legal perspective.

Ask to see the search warrant. Do not provide any information about the matter and do not assist with the search. Seek legal advice early on—ideally while the search is still underway. As experienced criminal defense attorneys, we will accompany you directly on-site, review the legality of the measures, and ensure that your rights are protected.

Legal basis and requirements for a search

A house search may only be carried out under strict conditions. The legal basis is Section 102 of the Code of Criminal Procedure (StPO). According to this, the police may only enter and search premises if there is concrete initial suspicion and a court order exists.

What can be searched?

  • All rooms associated with the suspect – including second homes, hotel rooms or business premises.
  • Motor vehicles may also be searched.
  • Rooms belonging to third parties (e.g. roommates) may only be entered with a court order and if there is concrete suspicion of a crime.

When is a search warrant effective?

  • The decision must be in writingunless there is “imminent danger”.
  • He is maximum 6 months valid.
  • The following information must be included:
    • The specific crime, the suspicion of the crime,
    • the Purpose and scope the search,
    • the Name of the rooms to be searched,
    • and a recognizable examination of the Proportionality by the judge.

Exceptions: Imminent danger (Section 105 (1) Sentence 1 of the Code of Criminal Procedure)

Only if a court order cannot be obtained in time and there is a suspicion that evidence will be destroyed, the public prosecutor or – in exceptional cases – the police may order a search.

What can be confiscated – and what cannot?

During a lawful search, all evidence related to the crime may be seized. This includes not only obvious evidence but also so-called incidental findings.

Seizure of evidence

  • All items directly related to the crime (e.g. drugs, weapons, stolen goods, electronic storage media) may be confiscated.
  • Also indirect evidence, such as notes, accounting documents or mobile phones, can be affected - especially in complex investigations such as tax crimes or fraud.

Chance finds

If the police find evidence of another crime not mentioned in the warrant during a lawful search, this evidence may be confiscated – as long as they were discovered by chance.

Example: If the apartment is searched on suspicion of drugs, a precision scale found may be confiscated – even if it was not explicitly searched for.

However, it is not permissible to deliberately expand the search to include other crimes without a court order. A search may not be conducted "in the blue."

When is a search inadmissible?

Not every house search is automatically lawful. In many cases, the necessary proportionality is lacking, or the police are not complying with legal requirements.

1. Invalid or faulty search warrant

A judicial decision is only effective if:

  • he not older than 6 months is,
  • the specific act and person affected are clearly named,
  • The purpose and scope of the search must be clearly described.

If this information is missing or the order is out of date, the search may be unlawful.

2. Search outside of permitted times

According to Section 104 of the Code of Criminal Procedure, a house search may only take place during the day:

  • Summer time (April–September): between 4:00 a.m. and 9:00 p.m.
  • Winter time (October–March): between 6:00 a.m. and 9:00 p.m.

At night A search is only permitted in exceptional cases – for example, in cases of imminent danger, in the event of prosecution in the act or to arrest a fugitive suspect.

3. Disproportionality

A serious interference with fundamental rights such as a search is only permissible if the public interest in criminal prosecution the interest in the inviolability of the home outweighsIn the case of minor offenses or minor allegations, a search may therefore be disproportionate and therefore inadmissible.

This is what you should do:

  • Remain calm and do not offer physical resistance.
  • Ask to see the search warrant and check:
    • Is he not older than 6 months?
    • Is your address and name correct?
  • Contact your criminal defense attorney immediately.
  • Voluntarily surrender wanted items to avoid coercive measures.
  • Request a copy of the search report.
  • Make a mental record: What was said, what was taken, who was present?

You should avoid:

  • Don’t make any statements on the matter! You are not obliged to comment – except to establish your identity.
  • Don't sign anythingwhich you did not fully understand.
  • Do not provide assistance in the search – You are not obliged to cooperate.

FAQ – Frequently asked questions about house searches

When may a house search take place?

A house search is only permissible if there is a court order or in cases of imminent danger. It must be proportionate and may not be used for mere investigation.

Who issues the search warrant?

Typically, an investigating judge issues the order. In cases of imminent danger, the public prosecutor's office or—in exceptional cases—the police may also issue the order.

Which rooms may be searched?

All rooms assigned to the accused: apartment, adjoining rooms, business premises, hotel rooms, vehicles. Third-party rooms may only be entered with express authorization and concrete suspicion of a crime.

Which items may be confiscated?

Evidence related to the crime, as well as incidental findings discovered during a lawful search. Cell phones only in cases of serious crimes.

When will I get confiscated items back?

After the proceedings have been concluded or as soon as the items are no longer needed. A request for release can also be made during the proceedings.

Do I have to be present during the search?

No. The search can also be conducted in your absence. However, a neutral person will usually be called in as a witness.

How should I behave during a search?

No statements, no signatures. Only provide your identity. Contact a criminal defense attorney and obtain the search warrant.

What is the police allowed to do?

Police may only conduct searches based on a valid warrant and within the legal time limit. Accidental finds may be taken away. Physical searches are subject to additional requirements.

What if nothing is found?

The public prosecutor's office can discontinue the proceedings or initiate further investigations. You or your defense attorney can request access to the files.

When is a search disproportionate?

If the charge is minor and less severe means of securing evidence are available, an appeal against the measure may be successful.

Can I claim compensation?

Only in exceptional cases—e.g., if proceedings are discontinued or the defendant is acquitted. The damage must be at least €25, and the claim must be filed within one month.

How can I defend myself against an unlawful search?

Subsequently, through judicial review of the order and, if necessary, a motion to prohibit the use of evidence. For this, you will need legal assistance and a copy of the order.

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