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Investigation

Police search of your home in Germany: your rights

Author
Rechtsanwältin Virginia Elisabeth von Burgsdorff
Published
Last updated
8 minute read
8 minute read

You have to allow a Hausdurchsuchung (a search of your home) to take place. You do not have to assist with it. It may be ordered only by a judge, and, where there is danger in delay, also by the Staatsanwaltschaft (the public prosecution office) and its investigators (§ 105 Abs. 1 Satz 1 StPO; Art. 13 Abs. 2 GG). You may comment on the allegation or stay silent (§ 136 Abs. 1 Satz 2 StPO), you may bring in a defence lawyer at any time (§ 137 Abs. 1 StPO), and you should expressly object to items being taken away rather than hand them over voluntarily.

01

Why did nobody stand at the door beforehand?

A search is not announced in advance. The law expressly exempts it from a prior hearing: when a seizure or other measures are ordered, the person concerned is not to be heard beforehand if a prior hearing would endanger the purpose of the order (§ 33 Abs. 4 Satz 1 StPO). Being taken by surprise is the course the law provides for here; it is not a procedural error.

The basis is either § 102 StPO or § 103 StPO. Under § 102 StPO, a search may be carried out at the premises of a person suspected of a criminal offence, both for the purpose of apprehending that person and where it is to be assumed that the search will lead to evidence being found. Under § 103 Abs. 1 Satz 1 StPO, searches at the premises of other persons are admissible only in order to apprehend the accused, to follow up traces of an offence or to seize particular objects, and only where facts exist from which it can be concluded that the person, trace or object sought is on the premises to be searched. The difference matters: it tells you whether you are being treated as the accused or as a third party.

02

Allow it, yes; assist with it, no

This is the point at which the course of a Hausdurchsuchung is decided. The order permits the officers to search. It does not oblige you to help them search.

You do not have to make any statement on the matter. At the beginning of questioning you must be told which offence you are alleged to have committed, and you must be informed that you are free to comment or not to make a statement on the matter (§ 136 Abs. 1 Satz 1 und 2 StPO). That also applies to conversations at the kitchen table that do not feel like questioning.

Nor does a search order create any duty to unlock devices or to name passwords. The duty to produce and surrender under § 95 Abs. 1 StPO is directed at whoever has custody of an object; the coercive measures of § 95 Abs. 2 Satz 1 StPO do not, under § 95 Abs. 2 Satz 2 StPO, apply to persons entitled to refuse to testify. Against the accused themselves, forced active assistance in securing their own conviction is not provided for.

Resistance is still a bad idea. The search takes place whether you agree to it or not. Stay calm, sign nothing you have not understood, and write everything down.

03

Who may be present?

The occupier of the premises or the holder of the objects to be searched may be present during the search (§ 106 Abs. 1 Satz 1 StPO). If that person is absent, their representative or an adult relative, housemate or neighbour is to be called in where possible (§ 106 Abs. 1 Satz 2 StPO). If a home is searched without a judge or a public prosecutor being present, a municipal official or two members of the municipality are to be called in where possible (§ 105 Abs. 2 Satz 1 StPO).

Where a third party's premises are searched under § 103 Abs. 1 StPO, that person must be told the purpose of the search before it begins (§ 106 Abs. 2 Satz 1 StPO).

Make the call. A defence lawyer may be brought in at any stage of the proceedings (§ 137 Abs. 1 StPO). That does not give you a right to have the search interrupted until the lawyer arrives. The call still changes the decisions of the next few hours.

04

What happens to your phone, laptop and documents

Objects that may be of significance as evidence are to be taken into safekeeping or otherwise secured (§ 94 Abs. 1 StPO). If they are in the custody of a person and are not handed over voluntarily, a Beschlagnahme (formal seizure) is required (§ 94 Abs. 2 StPO). A seizure may be ordered only by the court, and, where there is danger in delay, also by the Staatsanwaltschaft and its investigators (§ 98 Abs. 1 Satz 1 StPO).

This is the difference that matters most in practice in the whole situation. Anyone who hands objects over voluntarily makes the seizure unnecessary. With it goes the order against which an application for a court decision under § 98 Abs. 2 StPO would be directed. Say clearly, therefore, that you are handing nothing over voluntarily and that you object to the seizure. The objection does not prevent the items from being taken; it preserves your remedy.

The examination of papers is a matter for the Staatsanwaltschaft and, on its order, for its investigators (§ 110 Abs. 1 StPO). Other officers may examine them only if the holder approves; otherwise the papers are to be delivered up in a sealed envelope (§ 110 Abs. 2 StPO). The same applies accordingly to electronic storage media, and the examination may be extended to storage media that are physically separate, in so far as they can be accessed from the device and there would otherwise be a risk of the data being lost (§ 110 Abs. 3 StPO). Where papers are taken away for examination or data are provisionally secured, §§ 95a and 98 Abs. 2 StPO apply accordingly (§ 110 Abs. 4 StPO).

If objects are found on that occasion which have nothing to do with the proceedings but point to another criminal offence, they are to be seized provisionally and the Staatsanwaltschaft is to be informed (§ 108 Abs. 1 StPO). Such chance findings can set off a second set of proceedings.

05

What you should ask for at the end

Once the search has been completed, you must on request be given a written notice which has to state the reason for the search and, in a case under § 102 StPO, also the offence (§ 107 Satz 1 StPO). Likewise on request, you must be handed a list of the objects taken into safekeeping or seized; if nothing suspicious is found, a certificate to that effect (§ 107 Satz 2 StPO).

Ask for both. Note down as well who was present, when the search began and ended, which rooms were affected and what was said. Later on, these notes can be the only source apart from the case file.

06

Can you do anything about a Hausdurchsuchung?

Yes, but after the search, not during it. A Beschwerde (an appeal to the higher court) may be lodged against a judicial search order (§ 304 Abs. 1 StPO). Against a seizure, the person concerned may apply for a court decision at any time, and must be informed of their rights (§ 98 Abs. 2 Satz 2 und 5 StPO). Where an officer has carried out a seizure without a judicial order, they are to apply within three days for judicial confirmation, and this in two situations: where neither the person concerned nor an adult relative was present at the seizure, or where an express objection was made (§ 98 Abs. 2 Satz 1 StPO). Anyone who was not at home at all during the search therefore need not have objected for this duty to arise.

Whether such an application is worthwhile, and with what objective, only emerges from the case file. The first step after a search is therefore Akteneinsicht (inspection of the case file).

Frequently asked questions about a Hausdurchsuchung

What must I be told and handed during a search?

Three things are set out in the law. As the occupier of the premises you may be present during the search (§ 106 Abs. 1 Satz 1 StPO). If your premises are searched as an uninvolved third party under § 103 Abs. 1 StPO, you must be told the purpose before it begins (§ 106 Abs. 2 Satz 1 StPO). And once it has been completed you must on request be given a written notice stating the reason for the search and, in a case under § 102 StPO, the offence; likewise on request you receive a list of the objects taken away or, if nothing suspicious was found, a certificate to that effect (§ 107 StPO). You have to ask expressly for this notice and this list. Ask as well to read the order, and note down the date, the court and the file reference.

Where there is danger in delay, the Staatsanwaltschaft and its investigators may also order the search (§ 105 Abs. 1 Satz 1 StPO). Whether there actually was danger in delay can be reviewed by a court later. Record, therefore, what you were told by way of justification.

No such duty follows from a search order. You do not have to make a statement on the matter (§ 136 Abs. 1 Satz 2 StPO). Whether, and under what conditions, biometric features may be used is legally contested; have that clarified before you do anything.

Seized objects remain with the investigating authority for the time being. You may apply at any time for a court decision on the seizure (§ 98 Abs. 2 Satz 2 StPO). The law does not set any period within which devices have to be returned.

This information is general in nature and does not replace advice on an individual case. It reflects the statutory texts as checked on 10 August 2026.

07

What happens next

After a search, the investigation moves on to its next step. What applies to a Vorladung (a summons to attend), an Anhörungsbogen (a written form inviting you to comment on the allegation) or a Strafbefehl (a written court order imposing a penalty without a main hearing) is set out on our page on summons and penal order. You will find an overview of the investigation stage on the page on general criminal law.

If you would like to discuss your case, you can reach the office by telephone or by email.

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Provisions referred to

The provisions mentioned in this article, each with a link to the official German text.