Imagine you are at home and the doorbell rings: it is police officers asking to come in. Are you obliged to open the door? The system protects you through the fundamental right to the inviolability of the home, but that protection is only effective if its content is known. Article 18.2 of the Constitution states it forcefully: no entry or search may be carried out in a home without the consent of the occupant or a judicial decision, except in the case of a flagrant offence. Three exceptions, and only three.
It is worth beginning with the concept of home, which for constitutional purposes is broader than it seems: it is not only the habitual residence, but any space in which a person exercises their privacy to the exclusion of third parties. A second residence, a hotel room while occupied, a habitable caravan or a professional office when it serves as a real home are protected. It does not, however, reach spaces open to the public or commercial premises. The key is the legitimate expectation of privacy.
The first route of legitimate entry is the consent of the occupant, which must be express, free, conscious and informed: the mere absence of resistance does not amount to consent, and the occupant must know they can refuse. Consent obtained by deception, such as that of officers who present themselves as gas technicians, or by physical pressure, is not valid. Moreover, it is revocable at any time. Any of the occupants may consent, but if the entry affects the privacy of a particular occupant, their consent counts, and that of a minor is not valid.
The second route is judicial authorisation. The entry and search order must precisely identify the home, the offence under investigation, the indications, the purpose of the search and its proportionality. A generic or insufficiently reasoned order may be challenged and give rise to the nullity of the search. The authorisation must pass a proportionality test of suitability, necessity and proportionality in the strict sense. The search must be carried out in daytime hours, between six in the morning and ten at night, unless the order authorises night entry; with the presence of the court clerk designated by the judge and of the occupant or, failing that, of two witnesses; and a detailed record must be drawn up.
The third route, the flagrant offence, is the most controversial and is interpreted strictly. It requires that the offence be being committed or have been committed so recently and evidently that the delay in obtaining the authorisation would frustrate the action, with a direct and immediate connection to the need to enter. Flagrancy cannot be invoked retrospectively: an offence committed days earlier, even if there are solid suspicions, does not justify it.
When the police enter without valid consent, without a sufficient judicial decision and without true flagrancy, the search is unlawful and everything found is null and void, a nullity that extends to the derived evidence. In addition, it may constitute an offence of breaking and entering a dwelling committed by a public official.
The inviolability of the home enjoys a double protection, constitutional and legal, so the citizen has several routes to enforce it: requesting the nullity of the evidence, appealing poorly reasoned decisions, reporting the officers who acted outside the law and, ultimately, turning to the Constitutional Court. All of them require the assistance of a criminal lawyer who can advise on the most appropriate one in each case.
