An entry and search is an investigative measure limiting fundamental rights that may be carried out within the framework of a criminal proceeding.
The Spanish Constitution recognizes the special protection that the home deserves, as it is the place where the most intimate and private life of individuals takes place. Thus, Article 18 of the Constitution establishes the inviolability of the home and the constitutional protection it deserves, indicating that no entry may be made without the consent of the owner of the home or without judicial authorization, except in cases of flagrante delicto.
In this sense, the concept of “domicile” extends not only to a person’s home or dwelling, but to all those spaces where the person can exercise his or her intimacy and develop his or her private life. For example: a hotel room, a caravan, a single room in an apartment, etc.
Entry and search of the domicile may only be carried out in the following cases:
1. In case of consent by the holder
The most common is that this consent is given to police officers and must be an express consent made by the owner of the home and investigated and that is free of coercion. It is advisable that it can be in writing or recorded to prove the circumstances and how it was carried out.
Consent can only be given by the owner of the domicile, i.e. the person who carries out his private life or intimacy there, so it is possible that it is a person other than the owner or tenant of the dwelling. In addition, if the person under investigation is detained, the consent must be given in the presence of his lawyer.
2. In the event that a flagrante delicto is being committed.
When there is certainty that a crime is being committed at that very moment inside the home, the police are authorized to enter the home to prevent the crime from being committed. For example, if cries for help are heard, if they observe a crime being committed from outside the home, etc.
3. In case of judicial authorization
In the framework of a criminal investigation, the judge may at some point agree to an entry and search of a home for evidence or traces, arrest a suspect, secure documents or other evidence, etc.
The judge must issue a resolution stating the reasons for authorizing the entry and justifying the criteria of proportionality and necessity that make it essential to carry out the diligence.
The entry is carried out by police officers in the presence of the court’s legal counsel, and a record must be drawn up recording all the actions carried out and all the objects found.
Sara Gabernet
Lawyer Expert in Legal Law
M&CAbogados
