Searches of Business Premises in Germany: What You Should and Should Not Do
What is the reason for a search?
In a search, the investigating officers look for specific evidence that the occupant refuses to disclose or hand over voluntarily. An initial suspicion is sufficient grounds for a search warrant. This means there must be some actual indication – not evidence at this stage! – that a crime has been committed or attempted. A judicial search warrant must be in place for a search to be performed. In “exigent circumstances”, the public prosecutor’s office can initiate a search itself, but only in exceptional cases.
The purpose of a search is generally to find evidence in the business premises and apartments of the suspect(s) if there is an initial suspicion that a crime has been committed. As a rule, searches are also carried out on
- computers,
- tablets,
- mobile phones,
- computer systems and
- other data carriers,
which are seized for this purpose in the course of a house search, so that they can be secured at the premises of the investigating authorities.
Who is permitted to carry out a search?
In principle, police officers, tax office officials and customs officers are all permitted to search. The officers are obliged to identify themselves.
Who can be subject to a search?
Not only the suspects themselves can be searched. Third parties may also be involved if there is reason to believe that there may be evidence on their premises. Basically, therefore, anyone can be subject to a house search.
What are my rights in the event of a search?
In the event of a search, persons concerned have the right to legal assistance. This right should by all means be exercised. The authorities may not refuse to allow you to make the necessary phone call.
A lawyer can check whether the formal requirements for the house search have been met and be present during the house search in order to ensure that the procedural rights of the suspect are respected. Furthermore, the lawyer usually knows which questions have to be answered, in which cases it is opportune to answer and in which cases it is wiser for a suspect to exercise their right to silence. Seemingly harmless questions are often based on tactical investigative methodology, and careless statements are difficult or impossible to rectify later. Suspects are often surprised at the significance of their statements made during a house search and the extent to which these make the subsequent defence more difficult, even if they were ostensibly made with the intention of demonstrating willingness to cooperate, to refute the criminal charge or to ameliorate the atmosphere.
In addition, persons concerned have the right to remain silent (as a rule, it is advisable to exercise this right!), to ask to see the officers’ ID and to be given the search warrant. The officers on site must also give the suspect a list of the confiscated items.
Emergency checklist: What to do when the officers arrive?
If officers have arrived at your door, or if you have otherwise been informed of a search at your premises, the following checklist can give you some initial general guidelines on what to do:
- Demonstrate your willingness to cooperate by remaining friendly and polite. Do not comment on the criminal charge! In general, say as little as possible. You have the right to remain silent. You should exercise this right under all circumstances, as making statements on the case will in no way avert the house search. If at all necessary, only talk to the officers about the procedure of the search. Do not engage in small talk, e.g. where you went on holiday recently, what you do after work, etc. It is not uncommon for such information to be used against you in the further course of preliminary proceedings.
- Inform the officers that you wish to have a lawyer present during the search and that you wish to make a telephone call for this purpose. Even if the officers have already confiscated your mobile phone, they are not permitted to refuse to allow you to make a phone call to a lawyer of your choice – but you may need to use an officer’s phone. Ask the officers to wait until your lawyer arrives before starting the search. In cases of white-collar crime, our experience is that the officers usually comply with this request. You can contact our criminal defence attorneys at +49 (0)69 76 75 77 80.
- Ask to see the judicial search warrant. Check whether the warrant is more than six months old, whether it accurately describes the premises to be searched, whether it is signed and which items it refers to. If it is more than six months old, the search warrant may not be enforced. Alert the officers to this fact. However, under no circumstances should you use force to obstruct the search.
- Ask to see the official ID of the persons conducting the search and, if possible, make copies or write down their names. Ask who the officer in charge is and make sure you write down his or her name, department and telephone number and, if applicable, fax number and email address.
- Should it not be possible to call in a lawyer or should the officers not wish to wait with the search, you can call in witnesses (employees, neighbours, etc.) to be present during the search and make sure that only the rooms and items specified in the search warrant are searched.
- Once the search has been completed, ask to be given a protocol of seizure and check that all seized items have been noted correctly. Do not agree to voluntarily hand over the items – the officers will usually ask you to do so. Have the officer in charge of the operation sign the protocol, indicating the date and time. Ask for the search protocol to be given to you. However, this may be written afterwards, so that it cannot be handed over to you immediately.
- Insist that the confiscated items be sealed. This means that the items are placed in a box and secured with a seal so that the examination of the contents cannot be carried out before a judge has ruled on an appeal against the seizure and search. It is not always possible to actually have the seized items sealed on the premises.
- After the officers have left, draw up your own protocol of the search process – and have each of the witnesses do the same – in which you record which rooms were searched (by whom) in which order and which items were found/seized in which room.
Preventing searches of business premises
Searching companies and especially banks is common practice for tax officials and customs officers. For compliance reasons and in order to mitigate damage, companies should therefore seek preventive advice on how to behave during a search and, if necessary – depending on the size and risk level of the company – draw up emergency plans.
Particularly for companies that work with (sensitive) customer data, the seizure of documents/computer systems can have serious consequences, especially if too many documents/data are handed over and/or if it was not necessary to hand over the data (to this extent) or the search warrant was unlawful in this respect. Since the examination of the documents can often take several weeks or even months, companies can run into difficulties that threaten their livelihood if, for example, contract documents are missing or accounting procedures cannot be carried out or annual financial statements cannot be prepared, thus leading to potential surcharges for late payment or even fines.
It can also be detrimental if information is shared among employees, who are not prepared for a search, in an uncontrolled manner. Plans for searches should therefore specify contact persons, so that no unnecessary attention is drawn to the procedure.
Being well prepared for the worst-case scenario can prevent greater damage to the company's finances and reputation.
Our consultancy services for searches of business premises
We support companies in the event of all types of searches with the following range of services:
- Preventive advice and staff training
- Compilation of "emergency plans" tailored to your needs
- Legal assistance and advice during a house search
- Legal review of the search
- Appeal against the search warrant/search
- Legal advice in matters of criminal law
Your attorney to assist you in the event of searches
You want to prevent a search or are already facing one? Your attorneys for all matters relating to company searches are Attorney Bartosz Dzionsko and Attorney Alice Romisch. Simply contact us by email (info@winheller.com) or by phone (+49 (0)69 / 76 75 77 80).
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