PROHIBITIONS ON UNLAWFUL SEARCHES AND EVIDENCE IN DRUG OFFENSES
PROHIBITIONS ON UNLAWFUL SEARCHES AND EVIDENCE IN DRUG OFFENSES
Entrance
One of the most important characteristics of criminal investigations related to drug offenses is that convictions are often the drugs seized during searches . Particularly in drug trafficking, possession for personal use, transportation, or storage offenses, searches of the suspect's person, vehicle, residence, workplace, bag, or other belongings can directly determine the course of the investigation.
However, the mere fact that a drug has been physically seized does not, by itself, constitute legally admissible evidence in criminal proceedings. Before examining what constitutes evidence, one must investigate how it was obtained. This is because, in Turkish criminal procedural law, the aim of reaching the material truth is not limitless. The state is obligated to comply with the procedures prescribed by the Constitution and laws, even against individuals it suspects of committing a crime.
Article 38, paragraph six of the Constitution explicitly stipulates that findings obtained illegally cannot be accepted as evidence. Article 217/2 of the Code of Criminal Procedure states that the alleged crime can only be proven with evidence obtained lawfully. Article 206/2-a of the Code of Criminal Procedure mandates the rejection of illegally obtained evidence, while Article 230 requires that illegally obtained evidence be explicitly indicated in the court's decision. Relying on evidence obtained through illegal methods also constitutes a clear violation of the law under Article 289/1-i of the Code of Criminal Procedure.
Therefore, when defending against drug-related crimes, not only the quantity, nature, or whether the substance was seized for commercial purposes should be examined, but also whether the search operation was conducted lawfully from beginning to end.
1. Why are searches so important in drug-related crimes?
In a significant number of drug-related crimes, the material subject of the crime is directly the drug or stimulant substance. Therefore, the seizure of the drug constitutes one of the strongest pieces of material evidence in the investigation.
For example, if drugs are found in the trunk of a vehicle after it has been stopped by law enforcement, if drugs and a sensitive scale are found during a search of a residence, or if packaged drugs are seized from a person's bag, the prosecutor may evaluate these findings under Article 188 of the Turkish Penal Code or, depending on the conditions, under Article 191 of the Turkish Penal Code.
However, the situation changes if the search itself is illegal.
Even if the drug genuinely belongs to the defendant, it may not be usable as a basis for a judgment if it was obtained in violation of the search procedure stipulated by the Constitution and the Code of Criminal Procedure.
Herein lies the fundamental principle of criminal procedure:
The material truth should be reached not at any cost, but through methods that comply with the rule of law.
This principle is particularly important in drug trafficking offenses, which carry severe penalties.
2. What is a Forensic Search?
Judicial search is a protective measure carried out to obtain evidence of a crime that has been committed or is in the process of being committed, or to apprehend a suspect or defendant.
Article 5 of the Regulation on Judicial and Preventive Searches defines a judicial search as a search conducted in a person's residence, workplace, person, private papers, belongings, or vehicle for the purpose of apprehending a person suspected of committing a crime or obtaining traces, evidence, and clues of the crime.
According to Article 116 of the Code of Criminal Procedure, a search of a suspect's or defendant's person, belongings, residence, workplace, or other places belonging to them must be conducted only if reasonable suspicion .
Therefore, it is not possible for law enforcement to search any individual based on abstract or arbitrary assessments.
In drug-related cases;
- the person being in an area with a high concentration of drug users,
- Changing direction when he saw the police,
- only he looked uneasy,
- having a past record of drug offenses
Such factors must be evaluated separately in each specific case. Their existence does not automatically create an unlimited search warrant.
The suspicion justifying the search be of a nature that can be inferred from and verified by the specific circumstances of the case .
3. A Search Warrant or Written Search Order is Required
One of the most common reasons for illegality in drug investigations is conducting searches without obtaining the necessary judicial search warrant or written search order.
According to Article 119 of the Code of Criminal Procedure, searches are generally conducted with a judge's order. In cases where delay would be detrimental, the public prosecutor may issue a written order; and if the prosecutor cannot be reached and the law permits, the head of the law enforcement agency may issue a written order.
However, for residences, workplaces, and enclosed areas not open to the public, a written order from a law enforcement officer is not sufficient. In these areas, a judge's decision or, in cases where delay would be detrimental, a written order from the public prosecutor is required.
The search warrant or order must also include:
The reason for the search, the person or place to be searched, the address or item, and the period during which the decision is valid must be clearly stated.
For example, law enforcement going to a house based on a tip about drug dealing does not give them the authority to enter and search the premises alone. If the necessary conditions are met, the judicial search procedure must be followed in contact with the prosecutor's office.
4. "Circumstances Where Delay Would Be Detrimental" Is Not an Unlimited Authority
One of the most debated concepts in practice a situation where delay is detrimental .
The ease with which narcotic substances can be concealed, transported, or destroyed is sometimes considered to create a problematic situation in practice, where delays in each drug investigation can be problematic.
This approach is not legally correct.
The circumstances under which delay is deemed detrimental must genuinely exist in the specific case. In other words, there must be a concrete risk that waiting for a judge's decision will lead to the destruction of evidence, the escape of the suspect, or a serious jeopardizing of the investigation's purpose.
Otherwise, the exceptional authority would transform into a general search authority.
The justification of "delay would be detrimental" should be examined more rigorously, especially if technical or physical surveillance has been ongoing for a long time prior to the incident, the suspect's address and identity are known beforehand, and law enforcement has had sufficient time to prepare for the search.
5. Preventive searches and judicial searches should not be confused with each other
One of the most important debates in drug cases is the boundary between preventive searches and judicial searches.
Under Article 9 of the Law on Police Duties and Powers, preventive searches are conducted not to gather evidence of a specific crime, but to prevent danger or the commission of a crime. Preventive searches can be conducted by a decision of a magistrate judge; in cases where delay would be detrimental, they can be conducted by a written order of the local administrative authority, subject to the conditions specified in the law. The decision must indicate the reason for the search, its scope, the place and time it will be conducted.
The purpose of a forensic search is to obtain evidence relating to a concrete suspicion of a crime.
This distinction is extremely important in drug investigations.
For example, if law enforcement begins following a person after receiving a concrete tip that "person X is in possession of drugs and is selling drugs," the activity may now be directed towards obtaining evidence of a specific crime.
After this stage, conducting a search for forensic evidence based on a general preventive search warrant may give rise to legal disputes.
Preventive searches cannot be used as a means of circumventing the requirements for judicial searches.
6. The right to stop does not imply the right to search
Another major problem in drug investigations is the confusion between law enforcement's power to stop and their power to search.
Article 4/A of the Law on Police Duties and Powers grants law enforcement the authority to stop individuals and vehicles and request identification under certain conditions. The exercise of this authority requires a reasonable cause based on the police officer's experience and the impression gained from the specific situation.
However, the fact that someone can be stopped does not automatically mean that their bag, pockets, sealed packages, or every compartment of their vehicle can be searched.
external checks conducted for security purposes during a stop and the search for evidence in the context of criminal procedure .
This is particularly important in drug cases, especially during searches of bags and pouches.
If law enforcement officers are searching for drugs by opening a sealed bag under the guise of a security check, it should be examined whether this is a simple search or security check, or whether it qualifies as a judicial or preventive search according to its specific circumstances.
High court rulings also state that searching a person's bag for drugs cannot be considered a simple check under Article 4/A of the Police Duties and Powers Law in all cases. It must be investigated whether there is a valid judicial search warrant, written order, or a preventive search warrant covering the location and time of the incident, which authorizes the search.
7. Being caught in the act does not completely eliminate the rules for searching
In drug investigations, police reports frequently include phrases such as "the person's behavior aroused suspicion," "the person began to flee," "the person threw the substance to the ground," or "a package believed to contain drugs was found.".
It should be investigated here whether the crime was actually committed in flagrante delicto.
For example, a situation where a person throws a transparent bag from their pocket onto the ground upon seeing law enforcement, and drugs are visibly found in the bag, is not the same legal situation as a situation where law enforcement stops the person and opens their closed bag without seeing any drugs.
In the first scenario, the drug is visible and the conditions for being caught in the act are met, while in the second scenario, the legal basis for the search warrant must also be questioned.
Therefore, the concept of "caught in the act" cannot be used as a general exception that renders the rules regarding search warrants ineffective.
8. House Search and Search Witnesses
The inviolability of the home is one of the fundamental rights protected by the Constitution. Therefore, there are stricter procedural safeguards regarding searches conducted in a home.
According to Article 119/4 of the Code of Criminal Procedure, if a search is to be conducted in a residence, workplace, or other enclosed place without the presence of the public prosecutor, two people from the local council or neighbors must be present .
This rule is extremely important in drug cases.
Indeed, in the Constitutional Court's Mehmet Cengiz and Rıdvan Cengiz, the search conducted at the residence and the evidence obtained as a result of this search were examined in detail; it was decided that the right to a fair trial was violated because the evidence obtained as a result of the unlawful search constituted the decisive basis for the conviction.
The Constitutional Court's decision also cites the Supreme Court's 10th Criminal Chamber's decision dated June 12, 2023, numbered E.2021/3448, K.2023/5427, which states that the seized drugs constitute illegally obtained evidence because two witnesses were not present during a house search conducted without the presence of a public prosecutor. Furthermore, it was assessed that even the defendants' admission that the drugs belonged to them did not negate the illegality of the search.
This approach is extremely important from a defense perspective.
The defendant's admission that the drugs belonged to him does not retroactively render the unlawful search lawful.
9. Nighttime Search of the Residence
According to Article 118 of the Code of Criminal Procedure, as a rule, searches cannot be conducted at night in residences, workplaces, and other enclosed places.
However, there are exceptions to this prohibition in cases of flagrant offenses, situations where delay would be detrimental, or certain arrest circumstances specified by law.
Therefore, in drug investigations, when searching residences at night, it is necessary to examine not only whether a search warrant exists, but whether the exceptional circumstances allowing for nighttime searches have been met .
10. Internal Body Search and Detection of Concealed Drugs in the Body
Concealing drugs in the mouth, stomach, anus, or genital area is a common occurrence, particularly in investigations into drug importation and trafficking.
However, in this case, the police's authority to conduct a routine body search should be distinguished from their authority to conduct an internal physical examination.
According to Article 75 of the Code of Criminal Procedure, an internal physical examination may be conducted by order of a judge or court; in cases where delay would be detrimental, it may be conducted by order of the public prosecutor. The prosecutor's decision must be submitted for approval to the judge or court within twenty-four hours.
Furthermore, an internal physical examination can only be performed by a physician or healthcare professional. Examinations of the genitals or anal area are also considered part of an internal physical examination.
In its BPO decision, the Constitutional Court assessed that the intervention by the law enforcement officer in the applicant's private area lacked a legal basis and ruled that the right to protect one's physical and moral integrity had been violated. The Court emphasized that even strong suspicion of drug use does not give law enforcement the authority to overstep the guarantees in Article 75 of the Code of Criminal Procedure.
Therefore, if there is suspicion of drugs being present in a person's body, instead of law enforcement directly initiating an internal physical examination, the procedure prescribed by law should be followed.
11. Can drugs seized during an unlawful search be used as the basis for a verdict?
The basic rule is clear:
Evidence obtained illegally cannot be used as the basis for a judgment.
When Article 38/6 of the Constitution, Article 206 of the Code of Criminal Procedure, and Article 217 of the Code of Criminal Procedure are considered together, the exclusion of illegally obtained evidence in criminal proceedings is a constitutional and legal necessity.
For example, in an unlawful search of a dwelling;
- drug,
- precision balance
- drug packaging materials,
- money allegedly obtained from drug sales
If they have been seized, the first thing to discuss is whether or not they can be used in the judgment.
Even if the drug substance is the material subject of the crime, the fact that the evidence was obtained illegally cannot be ignored.
13. Does Every Irregularity in Searches Automatically Lead to Acquittal?
An important distinction must be made here.
While it is undeniable that illegally obtained evidence cannot be used as the basis for a judgment, this does not automatically result in an acquittal in every case.
After illegally obtained evidence is removed from the file, the remaining legally admissible evidence should be evaluated.
For example, if 20 grams of drugs are found during an illegal search, but the defendant's connection to a much larger quantity of drugs lawfully seized elsewhere is proven by camera footage, communication content, witness testimonies, or other independent evidence, the conviction may be based on that other evidence.
Indeed, in the Constitutional Court's BPO decision, although it was acknowledged that some of the drugs obtained through internal body searches were illegally seized, the fact that other, larger quantities of legally obtained drugs were also found in the file meant that the illegally seized evidence was not the sole or decisive factor, and it was concluded that the right to a fair trial had not been violated.
Here, two different legal assessments must be distinguished from each other:
Firstly, whether the evidence can be used under domestic law.
The second issue, in the context of individual applications to the Constitutional Court, is whether the use of illegally obtained evidence renders the entire trial unfair.
Therefore, the fact that the Constitutional Court found no violation of the right to a fair trial in some cases does not mean that illegally obtained evidence can be freely used by criminal courts.
14. Other Evidence Obtained Based on Illegally Obtained Evidence
Another major problem in drug investigations is the acquisition of new evidence following the initial illegally obtained evidence.
For example, a house key might be found during an illegal body search, the residence might be identified using that key, and subsequently drugs might be seized at that residence.
In this case, not only the initial evidence but also the status of other evidence obtained in the continuation of the unlawful act must be discussed.
In legal doctrine, this problem is generally addressed within the framework of the "fruit of the poisonous tree" theory
Turkish law does not codify the Anglo-American legal model verbatim. However, whether the subsequent evidence was obtained entirely through the unlawful initial act, whether it has an independent and legally valid source, and the causal link between the unlawfulness and the subsequent evidence must be evaluated in the specific case at hand.
From a defense perspective , it is therefore important to look not only at the last search where the drugs were found, but also at the entire chain of procedures that led to the evidence
15. Search Records Should Be Examined in Detail
In drug-related cases, one of the most important documents for the defense is the search and seizure report.
When evaluating the minutes, particular attention should be paid to:
The following aspects should be examined: the date and time of the search warrant and the time the search was conducted, the validity period of the warrant, the address or vehicle covered by the search, the officers involved in the search, whether the public prosecutor was present, whether there were witnesses to the search, exactly where and how the drugs were found, whether the substance was in the open or in a closed compartment, how the chain of custody and delivery was conducted, and whether the search warrant was shown to the suspect.
If the police report contains abstract phrases such as "suspicious movements," "suspicion of the situation," "general security check," or "with the person's consent," it should be investigated whether these phrases are supported by concrete facts of the case.
16. The "Consent Given" Defense Does Not Always Replace a Search Warrant
In practice, law enforcement reports sometimes state that the person "opened their bag voluntarily" or "consented to the search.".
However, if the legal conditions for a search that constitutes an interference with fundamental rights are not met, it should be seriously examined whether law enforcement can override a legal search procedure solely on the basis of a statement of "consent.".
Whether an expressed will is truly free is debatable, especially in situations where multiple armed law enforcement officers are present, where the individual's freedom of movement is effectively restricted, or where they have not been informed that they can refuse a search.
Therefore, in drug cases, the phrases "voluntary surrender" or "voluntary search" alone should not be considered sufficient; the actual circumstances of the incident must be investigated.
17. When Should an Objection to an Unlawful Search Be Raised?
It is important to raise objections regarding illegally obtained evidence as early as possible in the investigation.
By the defense attorney;
The court may request that the search warrant and supporting request be brought to the file, that the location, date, and scope of any preventive search warrant be examined, that the search and seizure records be evaluated, that any camera footage be obtained, that the law enforcement officers who participated in the search be questioned, and that the search witnesses who were stated to have been present during the house search be identified and questioned if necessary.
During the prosecution phase, it is possible to request the rejection of illegally obtained evidence and its exclusion from the judgment, in accordance with Articles 206/2-a and 217/2 of the Code of Criminal Procedure.
If a court has based its conviction on illegally obtained evidence, this must be explicitly raised in the appeal process and, if the conditions are met, in the cassation appeal process. Article 289/1-i of the Code of Criminal Procedure regulates the reliance of a judgment on evidence obtained through illegal methods as a direct and definitive violation of the law.
18. Key Questions of the Defense in Drug Cases
To properly assess the illegality of searches in a drug case, the following questions must be answered:
Why was the search initiated?
Was there a concrete tip-off, was physical surveillance conducted, or did law enforcement simply suspect the individual's behavior?
Was there suspicion of a crime at the moment the search began?
If a specific suspicion of a crime arises, preventive law enforcement activity may transform into judicial law enforcement activity.
Was there a search warrant?
If so, by which authority, for what date and time, and in terms of which person, address, vehicle or item was it issued?
Was there truly a situation where delay would be detrimental?
Is there any concrete explanation regarding this matter in the records?
Where were the drugs found?
Was it out in the open, in someone's pocket, in a closed bag, in a closed compartment in a vehicle, or in a residence?
Was the public prosecutor present during the house search?
If not ready, have two witnesses been found for the search?
Was the search conducted at night?
Have any legal exceptions arisen regarding nighttime searches?
Was an internal body examination performed?
If so, have the conditions of Article 75 of the Code of Criminal Procedure been met?
If illegally obtained evidence is removed, is there any other sufficient evidence left?
Aside from the drug itself, is there any other independent and legally admissible evidence demonstrating that the defendant committed the crime?
The answers to these questions could completely change the outcome of a drug case.
Conclusion
In drug-related crimes, prohibitions against unlawful searches and seizure of evidence are among the most critical defense areas in criminal proceedings.
The mere fact that drugs are found on a person, in their vehicle, or in their residence is not sufficient grounds for conviction. First, whether the drugs were obtained in accordance with the Constitution, the Code of Criminal Procedure, and the provisions regarding searches .
The fundamental approach of Article 38/6 of the Constitution and Article 217/2 of the Code of Criminal Procedure is clear: In criminal proceedings, a crime can only be proven with evidence obtained lawfully.
Therefore, especially in drug trafficking crimes;
Whether a search warrant exists, the scope of the warrant, the requirement of reasonable suspicion, the existence of circumstances where delay would be detrimental, the distinction between preventive and judicial searches, the limits of law enforcement's authority to stop individuals, the requirement for witnesses in residential searches, night searches, internal physical examinations, and the impact of illegally obtained evidence on the judgment should all be considered together.
The Constitutional Court's decisions regarding Orhan Kılıç, Mehmet Cengiz, and Rıdvan Cengiz demonstrate that when drugs and other material evidence seized during an unlawful search of a residence constitute essential or decisive evidence for conviction, the issue is not merely a procedural deficiency; it is a constitutional matter directly affecting the right to a fair trial.
On the other hand, excluding illegally obtained evidence does not automatically result in acquittal in every case. What should be done is to examine whether, after excluding the illegally obtained evidence, there is other evidence in the file that is sufficient to convict the defendant, is conclusive beyond any reasonable doubt, and was obtained legally .
In conclusion, the defense in drug-related crimes should not be based solely on questions such as "who owned the drugs, what was the quantity, and was there a trafficking motive?"
Before all of that, the question that needs to be asked is this:
"Was this drug seized in a way that could be considered legally valid evidence?"
The answer to this question can be the key difference between a long prison sentence and acquittal in drug trafficking cases in some instances.
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