BGH, Beschl. v. 4.6.2020 - 4 StR 15/20: The BGH has recognized to a much wider extent a prohibition against using evidence found during a search which was ordered without imminent danger and without involving a judge.

The facts of the case: Police officers wanted to arrest the defendant in his apartment in the evening because of prior arrest warrants. They detected the smell of cannabis, entered the apartment, found the suspicious plants, made sure that nobody else was in the apartment, closed the apartment door, took the defendant away, and informed the criminal investigation department. This department informed the on-call prosecutor only shortly before the end of the judicial standby duty. The public prosecutor did not call the judge in because he assumed that he would not be able to comply with the expected request for a written application before the end of the judicial stand-by duty. Instead, he ordered the search himself. Thereupon the cannabis plants were seized.

The BGH justifies the prohibition of the use of evidence as follows: A new warrant was required for the second search of the accused's apartment by the summoned officers of the criminal investigation department after 8:26 p.m. The arrangement underlying the police "apartment inspection" at 18:40 could not cover the second entering of the dwelling at a later time. This first arrangement had been issued rightfully after § 105 exp. 1 sentence 1 StPO, because there was danger in delay at this time. The order had, however, already been used up, in that the executing officers implied the end of the search measure when they left the apartment.

The second search was unlawful because of the disregard of the judge's reservation and because a judicial search order, which is basically necessary according to article 13 paragraph 2 GG, § 105 paragraph 1 sentence 1 StPO, did not exist and the “urgent competence” employed by the public prosecutor's office also did not exist at that time.

In the view of the BGH, the illegality of the apartment search, which took place on order of the public prosecutor's office, justifies a complete prohibition against the use of any evidence obtained thereby. The acceptance of such a prohibition depends upon consideration of whether the judge's reservation was deliberately disregarded or its conditions were grossly misjudged. In the view of the Federal Court of Justice, such a serious violation occurred here. In view of the gross disregard of the judge's reservation, it also becomes irrelevant that a search warrant could have been likely obtained if proper procedures had been followed.

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