House search: What are my rights? Answers from a lawyer

.

The police search your home. What are my rights and what should I do?

What is a house search about?

A house search is a compulsory measure under criminal law. compulsory measure. This means that criminal proceedings have been initiated against you (BGE 141 IV 20, Erw.1.1.4). The main purpose of a house search is to secure evidence (Art. 196 lit. a of the Code of Criminal Procedure) and to secure the presence of persons in criminal proceedings, in particular the arrest of accused persons (Art. 196 lit. b of the Code of Criminal Procedure). Houses, homes and other premises that are not generally accessible may be searched if it is suspected that wanted persons are present (Art. 244 para. 2 lit. a Criminal Procedure Code), traces of the crime or objects or assets to be seized objects or assets are present (Art. 244 para. 2 lit. b Code of Criminal Procedure) or criminal offenses are committed (Art. 244 para. 2 lit. c Code of Criminal Procedure).

Why was the search ordered?

Either the house search was ordered on the basis of (extensive) preliminary police investigations or as a result of an incident that had just taken place. If was ordered on the basis of preliminary police investigations, you must assume that there is reasonable suspicion of a criminal offense exists (Art. 197 para. 1 lit. c of the Code of Criminal Procedure). You must expect expect that the public prosecutor's office and the police will have incriminating information. Since a house search represents a intrusion into your privacy, it is probably a matter of a significant criminal offense (Art. 197 para. 1 lit. d Criminal Procedure Code). However, a house search can also be ordered if no preliminary police preliminary police investigations have taken place, but if it is a criminal offense of which the public prosecutor's office and the police have only just learned of. In such cases, the public prosecutor's office and and the police have less information and it is often disputed whether there was even sufficient suspicion for the house search.

When do house searches take place?

A distinction must be made as to whether the house search is based on (extensive) preliminary investigations by the police or as a result of a possible criminal offense that the public prosecutor's office and the police have have only just learned of. In the former case, it can be assumed that the public prosecutor's office and the police have incriminating incriminating information. The public prosecutor's office has police the order to carry out a house search at your home carry out a house search (Art. 312 para. 1 of the Code of Criminal Procedure). The police officers usually go to your home at around 06.00 a.m. without flashing blue lights and sirens and ring the doorbell at your home. The time of the house search is chosen because you are probably at home, you are still tired and surprised, you could be taken by surprise, open the front door of your own accord and let the police in without further ado. The police will then enter your premises and carry out the house search. They focus on the items evidence or persons to be seized in accordance with the public prosecutor's search order. Depending on the allegation, other specialists may be on site, such as dog handlers with search dogs (e.g. on suspicion of narcotics offenses), forensic technicians to secure evidence (DNA traces, fingerprints, e.g. in cases of suspected property crime), Specialists for technical devices (e.g. gambling machines). In the latter cases, the house searches take place "spontaneously" after the the possible offense (e.g. violent crimes). This can be at any time of day or night. The police have less in-depth knowledge of the facts. It may be that due to specialists cannot be called out due to the urgency. This may result in your premises being sealed for the purpose of purpose of carrying out a second search at a later date. to be carried out at a later date.

How exactly do searches of apartments, houses or offices work?

The police officers enter your premises, introduce themselves and present the house search warrant at the beginning of the search (Art. 245 para. 1 of the Code of Criminal Procedure). If it is an urgent case in which the the public prosecutor's office and the police have only just learned of a of a possible criminal offense, a house search can be ordered orally be ordered (Art. 241 para. 1 of the Code of Criminal Procedure). If there is imminent danger, the police may carry out a house search even without an order from the public prosecutor's office (Art. 241 para. 3 Code of Criminal Procedure). The police first check first check all rooms for persons present. With the persons present personal details are clarified. The police may search persons who are stopped, in particular to ensure the safety of persons (Art. 241 para. 4 of the Code of Criminal Procedure). At the same time, all rooms specified in the search warrant are searched (Art. 241 para. 1 lit. a Code of Criminal Procedure). The The public prosecutor's office regularly orders the search of all premises, including garages, vehicles, cellars and attics and attics. This may be disproportionate in certain circumstances (Art. 197 para. 1 lit. c Criminal Procedure Code). The police officers open and search all containers, clothing and documents with gloves and flashlights. containers, clothing and documents. The procedures are photographed recorded. Owners of the rooms to be searched who are present must witness the search. rooms to be searched must be present during the search. If they are absent If possible, an adult family member or another suitable person other suitable person (Art. 245 para. 2 Code of Criminal Procedure). The police may prohibit persons present from leaving the premises during the search remove themselves during the search (Art. 242 para. 2 Code of Criminal Procedure). During the During the house search, the police will repeatedly ask you questions about objects, the facts of the case and your person. We advise you, to make use of your right to refuse to give evidence (Art. 158 para. 1 lit. b Criminal Procedure Code). After completion of the search is completed, you will be given a copy of the execution protocol and a list of the items seized (Art. 199 of the Code of Criminal Procedure).

What happens if I do not open the front door for the police?

If you do not open the front door of your own accord, the police will try to persuade you to open the front door, among other things by threatening to forcing the door open with a pile driver. The use of force is expressly permitted by the police as the ultimate means of enforcing measures (Art. 200 of the Code of Criminal Procedure). As a rule However, the door is not forced open immediately, but a locksmith is instead, a locksmith is called out to try to unlock the door using attempts to unlock the door. The battering ram can be used if the locksmith is unable to open the door, e.g. because a house key stuck inside, for example.

What can I do if the police come to my door and want to search my home?

If you are on site, before opening the front door you can all password-protected cell phones, tablets and computers switch them off. We assume that you have enough time to do this, before the police break down your front door. You can leave the house key so that the locksmith cannot unlock the front door immediately. cannot unlock the door immediately. After the front door has been opened ask to see the search warrant. This has the persons, premises, objects or records to be records (Art. 241 para. 1 lit. a of the Code of Criminal Procedure) and the purpose of the search (Art. 241 para. 1 lit. b Code of Criminal Procedure). If you are presented with written order, you know that the police and the public prosecutor's office the public prosecutor's office have already carried out some preliminary investigations which have probably established reasonable suspicion. From now on you must refuse to give evidence and to cooperate, demand sealing and not disclose any passwords. House searches must have been ordered as coercive measures by a public prosecutor have been ordered by a public prosecutor (Art. 198 para. 1 of the Code of Criminal Procedure). However, it happens time and again police officers carry out "house searches" on their own initiative by ringing the doorbell and asking if they may enter and look around. enter and have a look around. Such "voluntary" house searches are controversial and, in our opinion, even even inadmissible. However, it is also possible that the search warrant has only been ordered verbally because it is an urgent case (Art. 241 para. 1 of the Code of Criminal Procedure). In this case, it is not yet available in writing. Nevertheless, the police should at least have a form on which the verbal order has been recorded. has been recorded. To find out whether the house search was actually ordered by a public prosecutor by a public prosecutor, you can search for the name of the public prosecutor who of the public prosecutor who is said to have ordered the house search, ask. In cases of imminent danger, the police can even carry out searches without an order. searches without a warrant, but they must inform the public prosecutor's office must be informed immediately (Art. 241 para. 3). Such cases practically never occur never occur, as there is always time to inform the public prosecutor by telephone. informed by telephone. During the house search itself, you can clearly indicate to the police which rooms are occupied by you and which are not occupied by you occupied by you or are shared by other residents. Make sure make sure that your statements in this regard are recorded in the house search are noted. This can also be particularly relevant in relation to relevant with regard to chance finds (Art. 243 of the Code of Criminal Procedure). In general, we advise you not to make any further statements to the police, in particular not to give the police any consent to enter any premises, no statements regarding questions about the possession of objects (e.g. clothes, wallets, documents) and not to disclose any disclose passwords. Although you will be told that it is useless but always ask for the sealing of all documents and electronic devices seized documents and electronic devices (Art. 248 of the Code of Criminal Procedure). A house search constitutes constitutes a serious invasion of privacy. Nevertheless you to behave in a friendly manner towards the police officers. Do not actively resist (risk of injury). Instead you can contact a criminal defense lawyer. If you are not on site and are informed that a house search is currently taking place, you should is taking place, you should inform a defense lawyer and ask them to advise you advice from them as to whether you should still go on site or not.

What are the "random finds" all about?

Accidentally discovered traces or objects that are not connected to the crime to be investigated, but which point to another criminal offense are seized. The objects are forwarded to the report to the director of proceedings, who will decide on the further proceedings (Art. 243 Code of Criminal Procedure). As a rule, the prosecutor's office after the discovery of traces or objects that are in connection with another criminal offense, further criminal opens criminal investigations. It is even obliged to do so (Art. 7 para. 1 of the Code of Criminal Procedure). In connection with questions repeatedly arise about the usability of these finds. of these finds. We therefore strongly advise you to seek advice in this regard from a defense lawyer.

Are searches of the workplace lawful?

Searches of the workplace are generally permissible (Art. 241 para. 1 of the Code of Criminal Procedure). Nevertheless, they are particularly annoying because the supervisor and employees become aware become aware of them. The circumstances must therefore warrant such searches. Even if the suspicion against you is not subsequently substantiated, such searches can have serious consequences, such as stigmatization such as stigmatization, loss of trust from superiors, bullying. In our opinion, such searches are therefore unlawful in most cases, as they are disproportionate (Art. 197 para. 1 lit. c Criminal Procedure Code). Also, in the case of searches at the workplace, further restrictions may apply with regard to the objects and documents to be searched may also apply, in particular if you are subject to professional secrecy such as medical confidentiality (Art. 264 of the Code of Criminal Procedure). We also advise you in the event of searches at the workplace to have all documents and objects sealed (Art. 248 of the Code of Criminal Procedure).

I am affected by a house search: Do I need a Criminal defense lawyer?

Yes, give us a call.