he police gather evidence in different ways. One way is to enter someone’s home and search it. In this regard, frequent questions are: are the police allowed to enter my home? Can the police search my home and take my things? When is it allowed and when it isn’t? The search of your home is carried out in order to find persons of interest or certain objects that can be used as evidence. When entering and searching, the police must comply with the law. All evidence, including evidence collected by searching, must be collected by the police in the manner prescribed by law. Otherwise, this evidence is considered illegal and cannot be used in criminal proceedings.
Everything written in this text about the conditions and method of searching a home applies equally to other premises that can be searched (e.g. business premises, offices, etc.). The exception to this is the part about the constitutional right to the inviolability of the home, as it applies only to the home.
When can the police enter your home and search it?
In accordance with the constitution, everyone has the right to inviolability of their home. This means that no one may enter someone else’s home or search it against the will of the person who lives there. Entry into someone else’s home and search against the persons will is allowed only on the basis of a written court order (known in layman’s terms as a “warrant” under the influence of American movies. In Republic of Serbia there is no “warrant” per se, but it’s also a court decision.). The backyard doesn’t enjoy constitutional protection like a house (apartment). The reason for this is that the constitutional right to the inviolability of the home applies only to the house (apartment), but not to the backyard. The police don’t have to follow the legal rules as they do for searches, when the backyard is in question. So, the police may enter your backyard without a court order and gather evidence.
There are exceptions in which the police may enter your home and search it without a written court order and without consent. These are the following justified situations:
- if someone is calling for help;
- for the immediate arrest of the perpetrator of the crime;
- when the police enforce a court order for detention or bringing the accused and
- in order to eliminate immediate and serious danger to people and property.
A search may only be undertaken if it is likely that the search will reveal the accused, evidence of a criminal offence or objects relevant to the proceedings. This means that the court may refuse to issue a search warrant if it considers that this prerequisite is not met.
When a search is carried out without a court decision, the public prosecutor or authorized police officers are obliged to submit a report to the judge for the preliminary proceedings who assesses whether the conditions for the search were met.
Can a search of an apartment be carried out for a misdemeanor? A search of an apartment can also be carried out in misdemeanor proceedings. In this case, the same rules apply as for criminal proceedings. However, there is one major difference – a search in a misdemeanor proceeding cannot be carried out without a court order.
How is a search conducted?
The occupier of the apartment shall be served with the court decision and shall be invited to voluntarily surrender the person and/or objects sought. He shall be advised of his right to have a lawyer present during the search. If he requests the presence of a lawyer, the start of the search shall be postponed until his arrival, but for a maximum of three hours.
The search may be conducted without proceeding in the above manner if:
- armed resistance or other type of violence is expected;
- the destruction of evidence of a criminal offense or objects important to the proceedings is clearly being prepared or has begun and
- the occupant of the apartment is unavailable.
If available, the occupier of the apartment shall be summoned to attend the search, and if not, an adult member of his household or another person shall be summoned. The search shall be attended by two adult witnesses who shall be warned to follow the course of the search and informed that they have the right to make their comments on the authenticity of the contents of the report before signing the search report. Witnesses do not have to be present if the search is carried out in the situations listed above.
The search must be carried out discreetly, with respect for the dignity of the person and the right to privacy and without unnecessary disruption of the household order. The search shall be carried out as a rule during the day, and at night (from 10 p.m. to 6 a.m.) only exceptionally, if it was started during the day and not completed or if this is determined by the search warrant.
Locked rooms, furniture or other items shall be opened by force only if the occupant of the apartment is not present or will not open voluntarily or if a person present refuses to do so. When opening by force, unnecessary damage shall be avoided.
A record shall be made of the search, which shall accurately describe the objects and documents to be seized and the place where they were found. It shall be specifically explained why the search is being conducted at night. The comments of the persons present shall also be entered in the record. The persons present shall sign the record, and if they refuse, this shall be specifically stated in the record.
The course of the search may be audio and optically recorded, and this is mandatory if the search is conducted without the presence of witnesses.
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