Search of the premises – call a lawyer

A search is one of the most common investigative actions used by law enforcement to gather evidence. This is a truly effective method, but for a business, a search can have serious consequences, including long-term paralysis of work due to the seizure of computer equipment and documents, as well as significant loss of reputation.

More often, searches are carried out suddenly, without warning, early in the morning or late in the evening. At such moments, a person may feel confused and afraid, which makes it difficult to effectively protect their rights and control the actions of law enforcement officers. It is important to know what to do correctly in this situation.

When they come to you for a search: what you need to know

Grounds for conducting a search. The main basis is a court ruling to conduct a search, which is adopted based on the result of consideration of a reasoned request to conduct a search. The resolution is valid for a month from the date of its issuance and must contain, in particular, the number of the criminal proceedings; information on the list of things, documents or persons in respect of which such action has been initiated; address of the facility to be searched; information about the owner of the object and the person who actually owns it.

It is important to remember that the determination of permission to search a home or other property gives the right to enter such an object only once.

The norms of the Code of Criminal Procedure provide law enforcement officers with the opportunity to carry out a search without a determination from the investigating judge in urgent cases related to the rescue of people or property or the direct detention of a suspect. In this case, the search is carried out on the basis of a resolution of the investigator, inquiry officer or prosecutor. It should be noted that in practice, law enforcement officers abuse their rights and conduct a search without the justification bases, and in the decision to conduct a search they formally quote the text of the law, without justifying the urgency of the search and the list of property that is planned to be found. This, in turn, creates the opportunity for law enforcement to seize any property located on the premises.

Meanwhile, the right of law enforcement officers to conduct a search without a court order corresponds with the obligation to further legitimize such an investigative action. The legalization of a search is that the law enforcement officer is obliged to immediately after the search apply to the investigating judge with a motion to conduct a search. Such a motion must first be approved by the prosecutor. When considering a motion, the investigating judge checks the validity of the grounds for the search without a court order. If the prosecutor does not approve the motion or the investigating judge refuses to satisfy it, then the evidence obtained as a result of the search is inadmissible, the seized property must be returned, and the information obtained must be destroyed.

It is necessary to understand that entry into a premises without a determination of permission to search can also be carried out on the basis of the voluntary consent of the person who owns it. Therefore, it should be taken into account that law enforcement officers, using psychological pressure, can obtain the unconscious consent of the owner of the premises for admission to the premises. There is no need to do this.

Procedural requirements for search. Before starting a search, the law enforcement officer must familiarize himself with the court ruling and provide a copy of it. Such a law enforcement officer must be indicated in the determination or be part of the investigative team, about which a corresponding resolution or extract from the URSI must be provided.

The search must be carried out from 06:00 to 22:00, no other time period is allowed, except in urgent cases where the delay may lead to the loss of evidence or the escape of the suspect.

The investigative action is carried out in the presence of two witnesses, who cannot be law enforcement officials, relatives of the suspect or accused, the victim and other interested parties. Therefore, it is necessary to establish under what circumstances and by whom such witnesses were involved in this action. In practice, there are cases when such witnesses arrive together with law enforcement officers, which raises doubts about their objectivity. In such a situation, it is necessary to require the involvement of other witnesses. Also, in order to prevent law enforcement officers from abusing their procedural powers, they should not be allowed to remain in the premises without witnesses or other participants in the search.

Law enforcement officers have the right to seize property during a search which are specified in a court ruling. However, as a rule, the text of the definition does not contain a specific list, and therefore property that has nothing to do with the case is often subject to seizure.

The search must be recorded by audio and video devices. When stopping the recording, a time period for such a stop should be established and be sure to indicate this in the search protocol.

Search participants have the right to have legal assistance from a criminal lawyer. The person conducting the search is obliged to admit a lawyer at any stage of its conduct.

If a law enforcement officer has reason to believe that a person who is in the premises is hiding objects or documents relevant to a criminal case, he may search such a person. A search of a person is carried out by persons of the same sex and in the presence of a lawyer (except for the case when such a person refuses the participation of a lawyer), therefore such a person has the right to call a lawyer during the search. A search without a lawyer can be carried out only if he fails to appear within three hours from the moment the latter is called.

Actions of a lawyer during a search

Checking the legal basis for the search. During a search, a lawyer checks the legality of the search based on a court ruling or an order of the investigative body, and checks the legitimacy of the specified documents.

Controlling the actions of law enforcement officers during a search. A criminal lawyer monitors the investigative authorities’ compliance with the above-described procedural requirements for a search, records violations, negotiates with law enforcement officers on equal terms, and is not subjected to pressure, which is usually subjected to the participants who are being searched. In most cases, the lawyer manages to convince law enforcement officers not to seize things that are not important for criminal proceedings. During a search, a lawyer records video and photo of the process, which further reduces the risk of substitution of evidence.

Legal work on the search protocol. The completion of the search is documented in a corresponding protocol, in which the lawyer sets out the observations and violations committed by law enforcement officers during the implementation of the investigative action. Checking the list of seized items specified in the protocol with those items that were actually seized. In case of seizure of copies and originals of documents, he controls the compilation by law enforcement officers of a register of such documents in accordance with the requirements of the law “On Accounting and Financial Reporting” and its inclusion in the search protocol.

Protection of seized property in litigation. After completing the search procedure, the investigative body turns to the investigating judge with the aim of arresting the seized property. A criminal lawyer controls the appointment of a court hearing on this issue, participates in it and carries out a procedural and legal objection to the seizure. Carries out a judicial appeal against the actions of the investigative agency regarding illegally seized property during a search.

A search without the participation of a lawyer is a risky business, and therefore, if they come to you with a search, contact the criminal lawyers of our firm to protect your rights and avoid pressure from law enforcement officers.