Lawyer : What Are Your Rights?
A search of your home can have a significant impact on your sense of privacy. Fortunately, such searches are only permitted under certain circumstances. The general rule is that such a search may only take place under the supervision of an investigating judge and after a public prosecutor has requested it, but there are exceptions.
In this article, we explain what powers investigative authorities have and under what circumstances a search of your home is permitted. We also provide some practical tips in case the police ever show up at your door.
What is the difference between entering, looking around, and searching?
Dutch law distinguishes between the authority to enter a residence and the authority to actually search it. The threshold for entry is generally lower. For example, under certain circumstances, an investigating officer may enter a residence with (only) an authorization from the public prosecutor or the assistant public prosecutor (Article 94 of the Code of Criminal Procedure and Articles 2 and 3 of the Awbi), or with the resident’s consent. An actual search, on the other hand, generally takes place under the supervision of the investigating judge (Article 110 of the Code of Criminal Procedure). The investigating judge must therefore be present (either in person or by telephone).
If someone is permitted to enter, he or she is also permitted to “look around in search of evidence,” as established by case law. This includes opening doors, but does not include opening cabinets or unplugging a drainpipe (see the “drainpipe ruling”). Opening a glass oven door—where the officer could already see what was inside the oven before opening it—was (just barely) within the scope of the authority to look around in search of evidence, according to a recent ruling by the Supreme Court.
Actions that go beyond simply looking around are lawful only if the person in question is authorized to search the home. As mentioned, stricter requirements generally apply in such cases.
What are the conditions for a search of a home?
The general rule governing a search is set forth in Article 110 of the Code of Criminal Procedure: the public prosecutor must first apply to the investigating judge. The investigating judge is not part of the investigative team but is part of the judiciary. He or she is therefore presumed to be independent. Only if the examining judge also determines that the case warrants a search may that search take place. Furthermore, the search must be conducted under the supervision of that examining judge. This can be done through physical presence, but it is also sufficient for the examining judge to supervise the search by telephone (see here an example from case law in which the court deemed this procedure to be correct).
There are exceptions to the general rule. For example, entry is permitted earlier if a person is caught in the act. Lower requirements also apply to a search if there is a suspicion that weapons or ammunition are present in the residence. Furthermore, the law distinguishes between the purpose of the entry or search: the requirements are less stringent if the purpose is to apprehend the suspect than if it is to seize evidence. The former typically involves an arrest carried out by a SWAT team; the latter is more accurately described by the layman’s term “house search.”
When determining what the police, the public prosecutor’s office, or the examining judge are or are not permitted to do, it is important to assess the legal basis on which they operate. The table below lists various powers related to a search (including a search of a residence). It also specifies what they are permitted to do, under what conditions, and who is authorized to exercise the relevant power.
| For arrest | ||||
|---|---|---|---|---|
| Basis | Contents | Authority | Requirements | Who? |
| Article 55, paragraph 1, of the Code of Criminal Procedure | Enter any location to make an arrest, except for a residence | Looking around in search of something | Catching a crime in the act | Everyone |
| Article 55, paragraph 2, of the Code of Criminal Procedure | Enter any location to make an arrest | Looking around in search of something | In the case of an arrest not in the act: arrest warrant issued by the public prosecutor (Article 54 of the Code of Criminal Procedure). In the case of an arrest at a residence: authorization from the public prosecutor or deputy public prosecutor (Articles 2 and 3 of the Awbi) or consent from the occupant | Investigating Officer |
| 55a Sv | Search every location to make an arrest | Search | Caught in the act; or—an offense for which pretrial detention is permitted and authorization by the public prosecutor, except in cases of urgent necessity | Investigating Officer |
| To be seized: | ||||
| Basis | Contents | Authority | Requirements | Who? |
| 96 Sv | Enter any premises for the purpose of seizure | Look around while searching & freeze the scene | Caught in the act; or—an offense for which pretrial detention is permitted. When entering a residence: authorization from the (assistant) public prosecutor (Articles 2 and 3 of the Awbi) or consent from the occupant | Investigators |
| 96c Sv | Any location, except for residences and offices of persons entitled to immunity | Search | Caught in the act; or—the offense for which pretrial detention is permitted | Public prosecutor; and assistant public prosecutor, in cases of urgent necessity and if the public prosecutor’s intervention cannot be awaited |
| 97 Sv | Search of a residence by a (deputy) public prosecutor | Search | Caught in the act; or—an offense for which pretrial detention is permitted | (Assistant) Public Prosecutor in cases of urgent necessity and if the examining judge’s action cannot be awaited |
| 110 Sv | Search of a residence by an examining magistrate | Search | At the request of the public prosecutor | Investigating judge, in the presence of the (assistant) public prosecutor, possibly accompanied by persons designated by the prosecutor (i.e., police officers) |
| Special provisions: | ||||
| Basis | Contents | Authority | Requirements | Who? |
| 9 Opium Act | Access to transportation (including residential areas) and to various locations | Looking around in search of something | Reasonable suspicion of a violation of the Opium Act. When entering a residence: authorization from the (assistant) public prosecutor (Sections 2 and 3 of the Awbi) or consent from the occupant | Investigators |
| 49 Weapons and Ammunition Act | Search all locations | Search | Reasonable suspicion that weapons or ammunition are present. When searching a residence: authorization from the (assistant) public prosecutor (Articles 2 and 3 of the Awbi) or consent from the occupant | Investigators |
| 20 Economic Offenses Act | Access to any location | Search, browse | Reasonably necessary for the performance of their duties, in the interest of criminal investigation. When entering a residence: authorization from the (assistant) public prosecutor (Articles 2 and 3 of the Awbi) or consent from the occupant | Investigators |
Is there an identification requirement during a search of a home?
Yes, is the short answer. In principle, anyone tasked with investigating criminal offenses or conducting any other type of investigation is required to identify themselves in advance and state the purpose of their entry. If two or more persons enter a residence for the same purpose, these obligations apply only to the person in charge at the time of entry (Art. 1(1) Awbi). There are exceptions to this rule, such as in cases of serious and immediate danger to the safety of persons or property (Art. 1(2) Awbi).
Other Rules Governing a Search of a Residence
The law also sets forth the following important rules regarding searches of a residence:
A report must be prepared regarding the entry. A copy of that report must, in principle, be sent to the resident within four days (Art. 10 and 11(2) of the Awbi).
In principle, the resident or a housemate must first be asked to voluntarily surrender the relevant item, unless the interests of the investigation preclude this (Art. 99(1) of the Code of Criminal Procedure).
In principle, the investigating officer must first allow the resident, housemate, or suspect to make a statement “regarding the items seized at the scene,” unless the interests of the investigation preclude this (Art. 99(2) of the Code of Criminal Procedure).
The suspect may lawyer by a lawyer during the search, but this must not cause any delay (Art. 99a of the Code of Criminal Procedure).
What if the search was unlawful?
If law enforcement agencies fail to comply with all applicable rules, this may constitute a procedural defect in the criminal investigation. This can have significant consequences for the criminal case. For example, the judge may:
noting the absence without taking any action;
apply a reduction in the sentence; or
exclude evidence;
Declare the Public Prosecutor's Office's motion inadmissible.
The consequences of a procedural defect depend on the circumstances of the case.
What to Do During or After a Search of Your Home?
What should you do in the event of an (imminent) search, or after your home has actually been searched? We’d like to offer the following tips:
Be cautious about giving permission. Once the police are inside, they are often allowed to “look around.”
Are you unsure whether the people at your door are actually police officers? If so, ask them to show you their identification.
Have any of your possessions been seized? File a request for their return and/or submit a complaint to the court regarding this matter. A lawyer assist you with this.
Contact a specialized criminal defense attorneyas soon as possible. A criminal defense attorney can help you assess your legal position, represent you in the criminal case (if one ensues), and file a complaint on your behalf regarding the seizure of property.
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