Search: your rights during a search

• A search of a home or other property is conducted, as a general rule, on the basis of a ruling of the investigating judge (Article 234 of the CPC).
• A search ruling is valid for a limited period and must contain a specific list of what is being sought (Article 235 of the CPC).
• During a search you have the right to have a lawyer present, and the search is recorded on video (Article 236 of the CPC).
• Violations of the search procedure can become grounds for declaring the obtained evidence inadmissible.
• Attorney Kobets, with more than 25 years of experience, helps protect your rights during a search and challenge violations.

A search is one of the most stressful investigative actions, during which it is important to know and assert your rights. Attorney Oleksii Kobets has more than 25 years of practice and a background in investigative bodies, so he knows the search procedure from the inside and sees where the investigation breaks the rules. Below is how to act during a search.

What is a search and when is it conducted?

A search is an investigative action aimed at finding and seizing items, documents or persons relevant to criminal proceedings. The grounds and procedure are defined by Articles 234-236 of the CPC. A search of a home or other property is allowed, as a rule, only on the basis of a ruling of the investigating judge; without one, entry into a home is possible only in exceptional urgent cases with subsequent court review.

Is a court ruling required for a search?

Yes, as a general rule a search of a home or other property is conducted on the basis of a ruling of the investigating judge (Article 234 of the CPC). The ruling must meet the requirements of Article 235 of the CPC: it must contain details of the premises, the specific items and documents sought, and its period of validity. So the first step during a search is to read the ruling, check the address, the list and the validity period; you must be given a copy.

Example. Someone knocks at six in the morning saying “open up, search”. Before letting anyone in, calmly ask to see the investigating judge’s ruling and service IDs, compare the address in the ruling with yours and check whether it has expired. This is not obstruction, it is exercising your rights.

What rights do you have during a search?

Article 236 of the CPC provides a number of guarantees. You have the right to be present during the search, to demand the presence of your lawyer, to read the ruling and receive a copy, and to demand that everything seized be properly recorded in the protocol. The search is recorded by technical means, including continuous video recording. You also have the right to make comments, which are entered into the protocol.

What can and cannot be seized during a search?

Subject to seizure are, above all, the items and documents specified in the ruling, as well as items withdrawn from circulation by law. If the investigation seizes property unrelated to the case, that may be a violation. Everything seized must be described in the protocol with its individual characteristics.

Example. The ruling allows searching for a specific laptop, but the investigators take all the phones, tablets and even the family’s cash. A calm demand to compare what is seized with the list in the ruling, and recording objections in the protocol, later help recover the property seized without grounds.

What investigative violations give grounds to exclude evidence?

A search without a proper ruling or beyond its scope, no video recording, seizure of items outside the list, denying access to a lawyer, violations in drawing up the protocol, all of this may point to the inadmissibility of the obtained evidence. The lawyer analyzes the ruling, the protocol and the video to identify violations and cast doubt on such evidence in court.

Example. The video recording of the search was interrupted several times exactly when the key item was allegedly “found”. The defense brings this to the court’s attention: interruptions in continuous recording cast doubt on where that evidence really came from.

What to do if they come with a search?

Stay calm, ask to see the investigating judge’s ruling and service IDs, check the address and the list, note the participants and the time. Call your lawyer immediately and insist on their presence. Do not obstruct the investigation, but watch the process carefully, make comments on the protocol and do not sign anything you disagree with without the appropriate notes.

Frequently asked questions

Can a search be conducted without a court ruling?
As a general rule, a home search is conducted on the basis of a ruling of the investigating judge. Without a ruling, entry into a home is possible only in urgent cases provided by law, with mandatory subsequent court review of its lawfulness.

Do I have the right to a lawyer during a search?
Yes. You have the right to have a lawyer present during the search and may insist that investigative actions be carried out with their participation. The presence of a defense lawyer helps record possible violations.

What if they seize items not listed in the ruling?
Record this in your comments on the protocol and inform your lawyer. Seizure of property outside the list in the ruling can be grounds for a challenge and for recovering the property.

Is the search recorded on video?
Yes. Under Article 236 of the CPC the search must be recorded continuously on video. The absence or interruption of the recording may cast doubt on the admissibility of the obtained evidence.

This material is for information purposes only and is not legal advice or a guarantee of any result. Every case is unique, and the application of legal rules depends on specific circumstances. For an assessment of your situation, seek a personal consultation with a lawyer. The author complies with the Rules of Attorney Ethics and the Law of Ukraine “On the Bar and Practice of Law”.