Illegal Search and Seizure in Drug Cases in Spain

In offences against public health the case is often won or lost on a preliminary question: how the drugs and the evidence were obtained. Almost all trafficking proceedings start from a search —of the vehicle, the home or the person— and the lawfulness of that search shapes the whole case.

Why the search decides the case

The seized drug is the core of the prosecution. If the procedure that found it was unlawful, the evidence supporting the charge wavers. That is why the defence's first task is to examine, rigorously, the lawfulness of how the evidence was obtained: who searched, under what title, with what safeguards and how it was recorded.

Frisk, vehicle search and entry into a home

Not all searches carry the same requirements. A superficial frisk of the person and a vehicle search in a public place are less intrusive and may be carried out on reasonable grounds, proportionately and with a record. Searching a home is a different matter: the home is inviolable (Art. 18.2 of the Constitution) and requires a reinforced enabling title.

The home search

Entering and searching a home requires one of three titles: (1) a judicial warrant that is reasoned and proportionate, justifying the measure on specific grounds; (2) free and informed consent of the occupant; or (3) flagrancy. The absence or defect of any of them —template warrants without reasoning, vitiated consent, forced 'flagrancy'— opens the door to exclusion.

Evidence exclusion (Art. 11.1 LOPJ)

Where the search breaches fundamental rights, Art. 11.1 LOPJ applies: evidence obtained, directly or indirectly, with that breach has no effect. The exclusion may extend to derived evidence through the connection of unlawfulness, so that excluding the find can leave the prosecution without support. It is the most decisive line of defence here.

The chain of custody and the purity analysis

Even where the search is lawful, the evidence about the substance can be challenged. The chain of custody —weighing in the presence of witnesses, sealing, transfer documents, identity between what was seized and what was analysed— must be documented without gaps. And the purity analysis is essential: for substances causing serious harm, significant quantity is measured on the pure substance, not the gross weight; a rigorous analysis may place the amount below the threshold and lower the penalty.

Wiretaps and interceptions

In large cases, the evidence often relies on phone interceptions. The defence examines whether the warrant ordering them was reasoned (not a template), whether it rested on objective grounds and whether it was judicially controlled. Defects in their ordering or control may render the wiretaps —and what derives from them— void.

What to do if you are searched or arrested

• Do not testify without a lawyer and exercise your right to remain silent (Art. 118 LECrim).
• Do not consent to searches without advice, and record any irregularity.
• Note how the search was conducted (presence of witnesses, weighing, sealing) for your defence.

Drug-offence defence with Alonso Sala

At Alonso Sala, a criminal-defence firm in Madrid (C/ Velázquez 27) with coverage throughout Spain, we examine the lawfulness of every search and the strength of the evidence in offences against public health. Read more on our drug trafficking page.