Criminal LawHow to Obtain a Search Warrant and What are the Search Conditions?

Search is an important protection measure used in criminal procedure law in order to obtain evidence or to apprehend the perpetrator of a crime. However, since it directly restricts fundamental rights and freedoms such as the right to privacy, inviolability of residence and personal liberty guaranteed by the Constitution, the implementation of the search measure is subject to strict legal conditions and procedures. The question “Can the police search my house or car?” is one of the issues that citizens are most curious about and need to know their rights. In this article, we will discuss in detail how the search warrant is obtained, under which conditions it can be applied, the types of searches, the rights you have during the search and the consequences of an unlawful search.

Definition and Legal Nature of Search: Search is a search of a person’s person, property, residence, workplace or other closed places in order to find evidence of an offence, to arrest a person suspected of committing an offence, or to seize property to be seized, as regulated in Article 116 et seq. of the Code of Criminal Procedure (CPC). Search is a “protection measure” and its main purpose is to reach the material truth.

Types of Search: There are two main types of searches in Turkish law:

1. Judicial Search (Article 116 et seq. of the Code of Criminal Procedure):
   • Objective: It is carried out in order to obtain evidence of an offence committed, to apprehend the perpetrator of the offence or to seize property related to the offence. It is subject to the provisions of the Code of Criminal Procedure.
   • Competent Authority: As a rule, it is carried out by a judge’s decision. In cases of delay, the public prosecutor, or if the public prosecutor cannot be reached, the chief law enforcement officer may issue a written search warrant.
2. Preventive Search (Article 9 of the Law on Police Duties and Powers):
   • Objective: It is carried out in order to prevent the commission of a crime and to ensure public order and security. Unlike judicial search, it is carried out with the suspicion that a crime will be committed before a crime has been committed.
   • Authorised Authority: It is carried out with the written order of the local authority (governor, district governor). However, in cases of delay, the chief of law enforcement may also give a written order. Preventive searches may be conducted in certain places (meetings, demonstration marches, public places, etc.) and limited to certain periods of time.

In this article, we will focus more on judicial searches, since the situations that citizens encounter in daily life and which carry the risk of violation of rights are generally within the scope of judicial searches.

Conditions for issuing a judicial search warrant (Article 116-119 of the Code of Criminal Procedure): In order for a judicial search warrant to be issued, the following conditions must be present together:

1. Judge’s Decision: As a rule, a search is conducted with a judge’s decision (Article 116/1 of the Code of Criminal Procedure). This is a requirement of the right to the inviolability of the dwelling, which is guaranteed under Article 21 of the Constitution. While evaluating the search request, the judge examines the place to be searched, the connection between the person or property and the offence, and the necessity of the search.

2. Circumstances of Delay: If there is a risk of destruction or alteration of the evidence of a crime when the search warrant is delayed, i.e. if there is a “case of undue delay”, the public prosecutor may issue a written search warrant. In cases where the public prosecutor cannot be reached, the chief of law enforcement (police chief, gendarmerie commander) may issue a written search warrant (Article 119/1 of the Code of Criminal Procedure). However, in this case, the search warrant issued by the law enforcement officer shall be submitted to the approval of the judge in charge within twenty-four hours. If the judge does not give his/her decision within twenty-four hours or does not approve it, the search is automatically terminated.

3. Reasonable Suspicion: In order to conduct a search, there must be reasonable suspicion based on concrete facts that there is evidence of a crime or that the perpetrator of the crime is hiding in the place or on the person to be searched (Article 116 of the Criminal Procedure Code). Only an abstract suspicion or assumption is not sufficient for a search warrant.

Content of the Search Warrant: The following points must be clearly stated in the search warrant or order (Article 119/2 of the Criminal Procedure Code):

• The reason for the search (which offence it is related to).
• The place, person or property to be searched.
• The scope of the search (what will be searched).
• The validity period of the search.

Conduct and Procedure of the Search (Article 117 et seq. of the Code of Criminal Procedure):

• Persons who may be present: At the place where the search is conducted, the owner or possessor of the place or their attorney or representative may be present during the search. In addition, the lawyer has the right to be present during the search. In searches conducted in the dwelling, two persons from the council of elders or neighbours shall be present.
• Search Report: A report shall be prepared as a result of the search. This report includes where, when and by whom the search was conducted, the items found during the search, the evidence seized and the statements of the persons present. The report shall be signed by those present and those who conducted the search.
• Confiscated Items: As a result of the search, items considered to be related to the offence may be confiscated. A list of the confiscated items is made and a copy is given to the person concerned.

Unlawful Search and its Consequences: If the search measure is not carried out in accordance with the conditions and procedures specified in the law, it is an “unlawful search”. The most important consequence of an unlawful search is that the evidence obtained as a result of this search cannot be used in court. This is also known as the “fruit of the poisonous tree theory”, meaning that evidence obtained through unlawful means is invalid in the proceedings (Art. 217/2 of the Code of Criminal Procedure).

Public officials who conduct unlawful searches may also be subject to disciplinary or criminal proceedings.

Your Rights During a Search: Knowing your rights during a search is critical to prevent unlawful practices:

• The Right to See the Search Warrant: You have the right to demand that the officers conducting the search show you the search warrant or written search warrant. The warrant must clearly state the reason, location and scope of the search.
• Right to Have a Lawyer Present: You have the right to have your lawyer present during the search. You can wait for the search to begin until your lawyer arrives (except in emergencies).
• Right to a Copy of the Search Report: You have the right to receive a copy of the report issued after the search is over. Make sure that the report accurately lists the items seized during the search.
• Right to Object: If you think that the search was unlawful, you can request that this be recorded in the report and then object.

Residential Search: Residential immunity is a right specifically protected by the Constitution. Therefore, a residential search is subject to more stringent conditions. As a rule, a residential search can only be conducted with a judge’s decision. In cases where the delay is inconvenient, the approval of a judge is also required for searches carried out by order of the prosecutor or the chief of the law enforcement.

Body Search and Vehicle Search: Searches conducted on the person’s person or vehicle are subject to similar legal conditions. Especially in vehicle searches, it is necessary to pay attention to the difference between routine practices such as traffic control and judicial searches. While a simple check during a traffic control does not qualify as a judicial search, a detailed search conducted on suspicion of a crime is subject to judicial search rules.

Although the search measure is an important part of criminal procedure, it is a sensitive practice that restricts the fundamental rights and freedoms of individuals. Therefore, compliance with the law is of great importance in the process of obtaining and implementing a search warrant. It is a critical step to prevent unlawful practices if citizens are aware of their rights during a search and do not hesitate to exercise these rights. In the event of a search, if you believe that your rights have been violated or if you are experiencing legal uncertainty, it is advisable to seek legal advice from a criminal lawyer immediately. Legal counselling is vital to prevent loss of rights and to ensure that the process is managed correctly.