Searching your home without a court order: when it is lawful and when it is not
The short answer is no, except in very specific cases. The home is one of the most protected spaces in the Spanish legal system: the inviolability of the home is a fundamental right recognised in Article 18.2 of the Constitution. Even so, many people do not know exactly when the police can enter their home, and the confusion can be costly: consenting to a search that is not mandatory is tantamount to opening the door to evidence that could not otherwise be used.
Article 18.2 establishes that 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. The concept of home is broad: it is not limited to the habitual residence but covers any space where a person carries on their private life with an expectation of excluding third parties, such as a second residence, a hotel room or a habitable caravan.
Only in three situations is entry legitimate. The first is the consent of the occupant, which substitutes for judicial authorisation, but which to be valid must be free, voluntary, conscious and informed: the person giving it must know they can refuse without consequences. Consent under intimidation or deception is not valid. From this derives something essential: you have the right to refuse to let the police enter if they do not have a court order, and that refusal is not an indication of guilt nor does it entail criminal consequences.
The second situation is the judicial decision. The investigating judge may issue an entry and search order when they find that there is evidence of the offence in the home and that the measure is necessary and proportionate. The order must be reasoned and specific: it must indicate the specific home, the offence under investigation, the indications and what is being sought. The search must be carried out in the presence of the interested party or, failing that, of a relative or two witnesses, and a detailed record must be drawn up.
The third situation is the flagrant offence, interpreted strictly: the offence must be being committed at that moment or have been committed so recently and evidently that any delay would frustrate the action. A generic suspicion, however well-founded, does not constitute flagrancy.
If the police arrive at your door without a court order, you are not obliged to let them in. You may ask the reason for their presence and, if there is no order or flagrancy, refuse politely but firmly. Call your lawyer immediately. Do not physically resist, because it may lead to charges of resistance or assault; it is enough to make clear that you do not consent to the entry.
If the police enter without valid consent, without judicial authorisation and without flagrancy, the search is unlawful and everything found is null and void, a nullity that extends to the derived evidence under the fruit of the poisonous tree doctrine. In addition, a search carried out without guarantees may constitute an offence of breaking and entering a dwelling by an official and give rise to State liability for damages. That is why, faced with a search, it is advisable to act calmly, demand the order and immediately report any irregularity to the lawyer.
