According to the constitution, a judicial order must be issued by the competent authority in all cases to search homes, except in cases of danger or distress, and the location, timing, and purpose of the operation must be specified in the judicial order. When entering or searching a residence, its inhabitants must be notified of the order issued in this regard.
To search the residence of a suspect, a search warrant issued by the public prosecutor's office is necessary, whereas a magistrate's order is required to search a dwelling that does not belong to the suspect.
However, home search rules were established to protect privacy rights, not to protect the home itself. If the homeowner consents to the search, the procedures followed are deemed safe, even if there is no search warrant.
In any case, anyone who claims the invalidity of a search warrant must hold on to this claim in front of the competent court, and it is not permissible to raise it for the first time in front of the Court of Cassation.
We refer here to a case where the Public Prosecutor's Office accused (S.A.) of possessing alcoholic beverages without paying the import fees. These beverages were seized at the suspect's home, and the search report indicated that the suspect (consented to the search of his home).
Arguing that it was conducted without his permission or consent and that the findings of the search officer were untrue.
The trial court did not consider this defense and issued a conviction against the defendant, and this judgment was also upheld by the appellate court.
An appeal was made to the Court of Cassation on the grounds that the trial court did not address the legality of the search and did not respond to the substantive defense of lack of consent.
The Court of Cassation overturned the appealed judgment and stated that the trial court should have addressed this defense and responded to it; Its failure to do so renders its judgment tainted with deficiencies and a violation of the right to defense, which necessitates its annulment.
To conclude, this article aims to emphasize that the limitations and safeguards established by the legislature regarding home searches are lifted if the homeowners give explicit and voluntary consent before the search, with no uncertainty or hesitation. This consent can be proven either in writing or through the documents related to the case.
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Originally published 3 May 2023
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