Article 553 Spanish Criminal Procedure Act: Entry and Search Without Judicial Authorisation

Article 553 of the Criminal Procedure Act sets out the narrow cases in which police officers may enter premises on their own authority: where there is a warrant of arrest, where the person is caught in the act, where an offender immediately pursued takes refuge in a house, and, in cases of exceptional or urgent necessity, where the persons concerned are suspected of the offences referred to in article 384 bis. Any search carried out on that occasion must be reported to the court immediately. Because the exception is narrow, most challenges to a warrantless entry are decided on the meaning of flagrancy and of immediate pursuit.

Wording of Article 553 of the Spanish Criminal Procedure Act

Requirements and procedure

1. One of the four situations: an existing warrant of imprisonment, a flagrant offence, the immediate pursuit of an offender who takes refuge in a house, or exceptional urgency in relation to the offences of article 384 bis.
2. Flagrancy in the strict sense: the offence is being committed or has just been committed, it is perceived directly, and immediate intervention is necessary. Suspicion, however well founded, is not flagrancy.
3. For pursuit, continuity between the sighting and the entry. An interruption converts the situation into one requiring a warrant.
4. Immediate notification to the competent judge, stating the reasons, the results, the arrests, the officers who took part and the incidents.

Defence strategy

Flagrancy did not exist. This is the argument that decides most cases. Where officers acted on information received, on the smell of a substance, on the observation of visitors coming and going, or on a previous surveillance operation, the offence was not being perceived directly at the moment of entry and there was time to obtain a warrant. The defence reconstructs the timeline from the incident report, the radio log and the surveillance notes, since the existence of a prior operation is itself evidence that a warrant could have been sought.

The chain of pursuit was broken. Immediate pursuit requires that the officers did not lose sight of the person. Where the accused was identified later from a description, where the officers arrived after a call and were told where he had gone, or where minutes elapsed while reinforcements were awaited, the pursuit was not immediate. The times recorded in the file, which are frequently inconsistent between documents, are examined against each other.

Defects in the notification to the court. The second paragraph is not a formality: the report must be immediate and must state the reasons, the results, the arrests, those who took part and the incidents. A report filed days later, or one that omits the reasons or the identity of the officers, deprives the court of the possibility of reviewing the entry. The defence obtains the docket to establish when the notification was actually recorded.

The scope of what was seized. The power extends to effects and instruments that may be connected with the offence being investigated. Material unrelated to that offence, and devices seized and later examined without judicial authorisation, fall outside it. The defence compares the seizure record with the offence relied on at the time of entry, because a warrantless search cannot be used retrospectively to justify the discovery of an unrelated offence.

• Article 545: inviolability of the home
• Article 520: rights in police custody
• Drug offences: defence service
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.