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Search: Requirements, procedure and rights of those affected

A search by the police or public prosecutor's office is often a stressful situation for those affected. Under certain conditions, the investigating authorities can search an apartment, house, business premises, vehicle, or other rooms and belongings.

For suspects, Section 102 of the Code of Criminal Procedure (StPO) is particularly important. According to this section, a search may be ordered, among other things, if a person is suspected of being the perpetrator or an accomplice in a crime and it is expected that the search will lead to the discovery of evidence. A search may also serve the purpose of apprehending suspects.

When can a search be ordered?

A search under Section 102 of the German Code of Criminal Procedure (StPO) requires a concrete suspicion of a crime, based on factual evidence. Mere suspicion is insufficient. There must be specific circumstances that justify the suspicion that a crime has been committed and that the person in question is a possible perpetrator or accomplice.

A sufficient or even urgent suspicion of a crime is not generally required to order a search. However, the suspicion must go beyond mere conjecture.

Does the police always need a judicial search warrant?

As a general rule, searches may only be ordered by a judge. In cases of imminent danger, the public prosecutor's office and its investigators may also order a search, provided the legal requirements are met.

The search warrant must define the scope of the search with sufficient specificity. In particular, it must clearly identify which rooms, objects, or other areas are to be searched and what evidence is being sought. This ensures that the execution of the search remains controllable. A search must not become an arbitrary, completely unrestricted search for evidence.

Furthermore, the measure must be proportionate. It must be suitable and necessary for the investigation of the crime and must not be disproportionate to the significance and severity of the alleged offense.

What did the Federal Court of Justice (BGH) decide regarding the renewed search?

In its decision of May 26, 2026 (StB 23/26), the Federal Court of Justice addressed, among other things, the requirements for a search and the question of under what circumstances a renewed search may be permissible.

The proceedings involved suspected membership in a terrorist organization. The Federal Court of Justice (BGH) clarified that a concrete suspicion based on specific factual evidence is sufficient for a search warrant. A sufficient or urgent suspicion of a crime is generally not required to order a search.

In this specific case, the Federal Court of Justice (BGH) ruled that the evidence included findings from previous investigations and searches, as well as other factual indications. The BGH considered this a sufficient basis for the necessary initial suspicion.

Of particular importance was the fact that a search had already taken place previously. The Federal Court of Justice (BGH) nevertheless deemed the renewed search permissible. The decisive factor was that the new measure related to a different line of inquiry and a different purpose for the search. A renewed search is therefore not inadmissible simply because a search has already taken place. Rather, the decisive factor is whether the new measure has an independent investigative basis and pursues a separate purpose.

How should one behave during a search?

For those affected, it is important to remain calm and not obstruct the search physically or through threats. Physical resistance can lead to further legal consequences.

The search warrant, if available, should be read carefully. Particular attention should be paid to which rooms and items are covered by the search.

Those affected are not required to provide any information about the matter. As a suspect, you generally have the right to remain silent. It is therefore usually advisable not to make any spontaneous statements regarding the accusation or potential evidence. Even seemingly casual remarks can later play a role. Therefore, as a general rule, those affected should say nothing at all.

Those affected can also declare that they do not consent to the search. While such a declaration does not usually prevent the search, the objection is recorded in the file and may later become relevant regarding the admissibility of the search results.

Is it permissible to involve a defense attorney during a search?

Legal advice can be helpful even during an ongoing search. A criminal defense attorney can be particularly useful in assessing the legal situation, guiding communication with the investigating authorities, and preparing for a subsequent review of the search warrant.

It is important to note that contacting a lawyer does not replace the obligation to tolerate a lawful search. However, it also does not mean that those affected must provide any information about the matter.

What happens to confiscated or seized items?

During a search, items can be secured or confiscated if they may be relevant as evidence for criminal proceedings or for later confiscation.

Those affected should request a list of the items taken or seized. Section 107 of the German Code of Criminal Procedure (StPO) provides for a corresponding search warrant or seizure list for this purpose.

The inventory is particularly important in order to later trace which items were taken by the investigating authorities.

Can mobile phones and computers also be searched?

Yes. Electronic devices and storage media can play a significant role during a search. These include, for example:

• Mobile phones and smartphones,

• Computers and laptops,

• Tablets,

• USB sticks,

• external hard drives and other data storage devices.

Electronic storage media can be seized and subsequently analyzed under the legal conditions. The Code of Criminal Procedure contains specific regulations for the examination of electronic storage media.

Seizing a device does not automatically mean that any information stored on it can be used arbitrarily without further legal review. The scope and execution of any further analysis may be subject to independent legal assessment.

Is it possible to defend oneself against a search?

Whether a search was lawful can, in principle, be legally reviewed even after it has been carried out. This applies particularly if there are doubts as to whether the legal requirements for the measure were met, whether the search warrant was sufficiently specific, or whether the measure was proportionate.

Even the seizure or confiscation of individual items can raise specific legal questions. The available legal remedies depend on the specific measure and the current stage of the proceedings.

What should those affected be aware of during a search?

The most important rules of conduct can be summarized as follows:

1. Remain calm and do not physically obstruct the procedure.

2. Do not make any statements on the matter.

3. Read the search warrant and check the purpose of the search.

4. Do not voluntarily consent to the search if you do not want to consent, and if necessary, explicitly state this.

5. Request a list of the seized or confiscated items.

6. Contact a criminal defense lawyer as early as possible.

A search does not automatically mean that the person concerned is guilty. It is an investigative measure, the legality of which is subject to legal requirements. Whether these requirements were met in a specific case can usually only be reliably assessed based on the search warrant and the investigation file.