1. Circumvention of the Accused’s Rights

The legal literature in this area elaborates on the accused’s rights considering that the BGH circumvents the decisive necessity for a search warrant issued by a judgeFootnote ³² in case the traffic control, or any other restrictive measure carried out by the police, is based on preventive legislation. In fact, preventive legislation that does not stipulate the necessity of such a warrant, even though an Anfangsverdacht can be discerned.

The main criticism centers on the assertion that the present judgment circumvents the repressive legislation more extensively protecting the accused’s rights.^{Footnote 33} Certainly, preventive legislation, too, justifies the police’s search for drugs so as to prevent the danger of them appearing on the market in large quantities. The present situation met the requirements of Section 37(I) Numbers 1 and 3 HSOG—preventive legislation—as the police’s goal was to prevent the illegal distribution of drugs. This aim, however, would have been achieved even if a search warrant had been issued by a judge under repressive legislation pursuant to Section 102 and 105 StPO. In order to assure the prevention of any disturbance to public security, a repressive check could enable the seizure of illegal substances just as a preventive one would. Critics therefore identify a risk of cherry-picking where the police are enabled to freely choose the legislation applicable for a specific police measure.^{Footnote 34} Predictably, this would encourage authorities to opt for preventive legislation.

In order to support the assertion that protective StPO provisions are being undermined, critics have also argued that the problem of legendierte Polizeikontrollen is not solely caused by the juxtaposition of preventive and repressive goals, but rather by the fact that they are based on a Legende, are well prepared, and are targeted at the individual concerned. This is considered unforeseeable to any potential subjects of the check.^{Footnote 35} As the police are not required to explain the reasons for their search, they effectively deceive the accused who presumes the measures are merely a random traffic check. Unaware of the background of the police check, the accused cannot defend themselves adequately. This is another reason why several authors consider the BGH decision to have disregarded the accused’s rights.

2. Scope of the BGH Decision

Critics have elaborated on the broad scope of the BGH decision. They generally conclude that an extensive application of preventive legislation undermines the protective provisions under the StPO.Footnote ³⁶ In practical terms, the BGH judgment justifies every police search for illegal arms or drugs under preventive legislation, provided that the police aim to prevent the commission of crimes, even when the focus of the measure is clearly repressive. Curtailing the significance of the accused’s rights granted under the StPO, preventive legislation could even be applied in situations where only small amounts of drugs are being transported or, for instance, when authorities pursue recidivists.^{Footnote 37} Thus, the BGH undermines the strict framework of the StPO by applying preventive legislation that is broadly interpreted under a wide notion of danger.

3. Inconsistency of the BGH Jurisprudence

Critics also argue that the decision of the BGH does not comply with its previous jurisprudence, as former decisions on this matter were rather inconsistent.

On December 8, 2015, for the first time, the third criminal panel of the BGH decided that a police search for drugs could be carried out without a warrant pursuant to Section 105 StPO, deeming preventive legislation applicable.^{Footnote 38} In February 2016, the second criminal panel decided the exact opposite: It held that the police had to meet the requirements of repressive legislation and obtain a warrant.^{Footnote 39} Similarly, the second criminal panel of the BGH also held in a comparable case in March 2017 that repressive legislation should apply.^{Footnote 40} In the present decision and in a BGH decision of November 15, 2017,^{Footnote 41} the second panel opted again for preventive legislation. Therefore, critics are justifiably questioning the consistency of the BGH decisions given the fact that, in all cases, including the case at hand, the police could have just as easily based their measures on preventive or repressive legislation, and that no reason for a difference in treatment can therefore be discerned.^{Footnote 42}

Likewise, some jurisprudential literature commented on the BGH decision of

December 8, 2015,Footnote ⁴³ in which judges referred to similar existing literature. According to the BGH, the December decision presumes a valid juxtaposition of preventive and repressive legislation as well. Legal literature, however, points out that there is a crucial difference between the two cases: In the former case, the BGH decision of December 8, 2015, the so-called Anfangsverdacht arose during the police check. In contrast, in the present case of 2017, the Anfangsverdacht had already been detected before the beginning of the police intervention. With regard to the aforementioned decisions, various authors now argue that the BGH has failed to develop a consistent jurisprudence regarding doppelfunktionale Maßnahmen.^{Footnote 44}

4. No Real Double Function of the Police Measures

Another critique raised in the legal literature concerns the Doppelfunktionalität (double objective) of the stop and search procedures. According to commentators, there was actually no realistic danger that the drugs could have been placed onto the market due to the well-prepared police intervention. At the very least, this danger could have been averted using repressive measures based on the StPO. The assumption of a doppelfunktionale Maßnahme has consequently been criticized by many voices in jurisprudential literature, as preventive aspects play only a subordinate role.^{Footnote 45} Recognizing the existence of situations where preventive and repressive elements are equally present, other voices in jurisprudential literature insist that police can base their control on both preventive and repressive legislation without excluding one or the other,^{Footnote 46} but only in situations in which both elements are deemed equally important. In the case at hand, most importantly, the authorities did not want the accused in Morocco to become aware of the ongoing investigation. Their focus therefore lays on repressive aspects; the prevention of the proliferation of a large quantity of drugs playing merely a secondary role. As there is no true double function of the police measures in this instance, critics say that preventive and repressive legislation cannot be simultaneously applicable.

1. The Juxtaposition of Both Preventive and Repressive Legislation Avoiding Absurd Results

The solution supported by the majority of jurisprudential literature might lead to contradictory results. A repressive control in accordance with Section 105 and 107 StPO does not assure the same efficiency of prevention as a preventive control. As stated above, such a warrant would have to explain the reasons for the search meaning that it would automatically expose the ongoing investigations. The authorities would subsequently not be able to conduct further seizures of illegal substances because the suspected group would have time to reorganize their strategy.^{Footnote 49}

Most legal commentators agree that preventive legislation is inapplicable where Anfangsverdacht is detectable, thus ignoring potential absurd results. Their solution would favor so-called Störer (persons disrupting official activities) that are not only Störer pursuant to preventive legislation, but also are offenders whose actions cross the relevant threshold of an offense. In fact, a Störer that causes a disturbance threatening public security without committing a criminal offense pursuant to repressive legislation could be dealt with in accordance with preventive legislation. A Störer who is also an offender would, however, be protected under repressive legislation. It therefore appears absurd to restrict the powers of the investigating authority merely in case the breach of law becomes more serious.^{Footnote 50}

2. Effective Enforcement of Criminal Justice

One of the main rationales behind the BGH’s decision was to promote the effective enforcement of criminal justice. As the authorities did not want the second suspect to learn of the ongoing investigation, they had to opt for preventive legislation.

The concept of the effective enforcement of criminal justice was first recognized in a 1972 BVerfG decision.^{Footnote 51} Since then, German courts have continued to firmly maintain this principle.^{Footnote 52} According to the BverfG (Bundesverfassungsgericht), this principle is a peculiarity of the general Rechtsstaatsprinzip (rule of law) pursuant to Article 20(III) GG. The effective investigation of criminal offenses therefore constitutes a paramount objective for the investigating authorities and must be taken into consideration whenever the existing written and applicable law leaves room for interpretation. Since the 1980s, legal literature has increasingly agreed with the idea that such a principle is enshrined in Article 20(III) GG. Nevertheless, critics maintain certain reservations and continue to warn about excessive application of the principle.^{Footnote 53} In addition to being enshrined in the German Constitution, the principle in question is implied in provisions Section 152(II), 160(I), and 244(I) StPO that oblige the public prosecution office and the courts to investigate all prosecutable Verbrechen (the class of criminal offenses that are more serious).^{Footnote 54} This further illustrates that effective enforcement of criminal justice is a paramount objective in criminal procedure.^{Footnote 55}

Preventive legislation can enable more effective and strategic investigations than the repressive StPO. In fact, early intervention by the public prosecution office might jeopardize the success of a current investigation. It is, therefore, often strategically advantageous to postpone such an intervention. The legislature has recognized this fact and has therefore introduced various provisions that anticipate the possibility of simultaneous application of preventive and repressive legislation. Section 36(V) of the German Road Traffic Regulations (Straßenverkehrsordnung; StVO) is an example of this. This provision pertains to preventive legislation but remains applicable in the event of an Anfangsverdacht. Enabling traffic controls, the provision was not created to justify repressive police action. This does not, however, exclude Section 36(V) StVO’s application to police measures which contribute to the investigation of already-committed offenses. Such a measure can thus be based on provisions of a preventive nature even if an Anfangsverdacht is present, meaning that the traffic control is carried out as a doppelfunktionale Maßnahme.Footnote ⁵⁶ Other provisions in German preventive legislation that show similar characteristics to the aforementioned example also exist and could apply in the context of doppelfunktionale Maßnahmen.Footnote ⁵⁷

As a result, preventive legislation must remain applicable for police measures where preventive and repressive elements coexist. Furthermore, there is no provision under German law that establishes a prevalence of the repressive legislation over the preventive legislation.^{Footnote 58} Indeed, still, critics have not been able to demonstrate conclusively that repressive legislation prevails over preventive legislation on the sole ground that an Anfangsverdacht could be ascertained.^{Footnote 59}

1. The Gateway Mechanism of Section 161 (II) (1) StPO

In order to substantiate the evidence secured by the authorities, the judges decided to base their solution on Section 161(II) StPO. This provision permits the introduction of evidence obtained by means stipulated by a law other than the StPO. In essence, this situation concerns information gathered by intelligence services or as a result of preventive police action.^{Footnote 71} As a gateway for other types of evidence, this provision facilitates comprehensive examination of information in court while simultaneously taking into account the danger of circumventing the rules specified by the StPO. Due to the strengthening of the accused’s rights, the analysis of danger constitutes a barrier for rapid and effective police action.

The legislature has been aware of this inherent danger of circumventing procedural guarantees, which is what led it to enshrine within the StPO a mechanism designed to uphold the principles of criminal prosecution.^{Footnote 72} The legal instrument of the hypothetical equivalent intervention will guarantee equality of treatment in court of two measures based on different laws without disadvantaging the accused’s rights.^{Footnote 73} Regarding evidence that was not procured in compliance with StPO rules, this instrument paves the way for exploitation of the evidence by construing a hypothetical situation. This concept of a hypothetical event, however, has been extremely controversial since its conception by legal scholars in the 1950s.Footnote ⁷⁴

Section 161(II)(1) StPO stipulates that the suspicion in a specific case must concern a crime for which the measure used would also have been permitted pursuant to the StPO. In the given case, the equivalent legal basis for the stop and search is found in Section 105 StPO. Consequently, the BGH was charged with a hypothetical application of its conditions.

2. The Applicability of the Hypothetical Equivalent Intervention Fiercely Debated in Legal Literature

The BGH proceeded in two steps: First, the judges explained their vision of the so-called Umwidmung—the re-designing of a measure. Second, they examine the requirements in the present case for this redone measure. According to the court, the idea of the hypothetical equivalent intervention is restricted to the material legal basis. Consequently, the legal standard only concerns the question of whether the stop and search measure itself was lawfully executed.^{Footnote 75} Any formal requirements defined by the equivalent StPO provision—in this case, the previous judicial authorization—do not affect the possibility that evidence will be exploited, as these stipulations constitute the default to be overcome by the hypothetical equivalent intervention. Thus, the vital aspect is whether the investigating judge would indubitably have issued a judicial search warrant on criminal procedural grounds. In its second step, the court acquiesced in the present case, and having identified Section 100a Sentence 2, Number 7 StPO as a pertinent ground justifying the investigation, accepted the admission of the evidence secured by the police during the stop and search procedure.

This result has aroused much criticism amongst legal scholars. What is predominately debated is whether Section 161(II)(1) StPO, in conjunction with the hypothetical equivalent intervention, constitutes the correct applicable legal basis upon which to determine the admissibility of evidence. When scrutinizing the hypothetical intervention, one finds that according to the exact wording of Section 161(II) StPO, this subsection is applicable only when an investigative measure is authorized pursuant to the StPO and only for specific crimes—the so-called Katalogstraftaten (catalogued crimes).^{Footnote 76} In this case, evidence acquired through equivalent measures under other laws can only be utilized if the measure was applied to investigate one of the crimes specified in the StPO,^{Footnote 77} even if the other laws do not require any specific crimes.

The problem is that Section 105 StPO does not require suspicion of any specific crime. Legal commentators therefore agree that Section 161(II)(1) StPO cannot be applied to stop and search procedures. Opinions vary significantly with regard to the consequences of these circumstances, however.

Several legal scholars propose that, in consequence, evidence exploitation is not subject to any prerequisite whatsoever. This means that measures adopted based on other laws that do not require a qualified suspicion of a catalogued crime may be utilized in court without further obstacles.^{Footnote 78} In particular, the hypothetical examination would thus not be necessary. This viewpoint defends the fact that the utilization of evidence for such measures must be based on Section 161(I) StPO, which provides the general power of the prosecution to cooperate with other authorities and to request information during investigations. The evidence obtained during a stop and search would thus be regarded as information requested from other authorities.

In contrast, other commentators insist that when the literal requirements of Section 161(II)(1) StPO have not been met, this provision is inapplicable and thus the obtained evidence must be excluded in Court.^{Footnote 79} Admittedly, this solution appears too strict for the scenario of evidence randomly discovered during a regular and preventive police check, because according to this opinion, no evidence secured on such an occasion could ever be used in court. This perspective is certainly convincing in the case of Legendierte Polizeikontrollen. The general clause of Section 161(I) StPO applies to information collected independently from criminal investigations. Even though the prosecution is entitled to demand the cooperation of other authorities during the collection process, this power does not extend to preventive police actions.^{Footnote 80} The judicial utilization of the evidence cannot, therefore, be based on this provision.

Additionally, the previously described second subsection of Section 161 StPO provides for an equality of treatment of police actions, requiring that measures not originating from the StPO must nonetheless comply with their equivalent measures of the StPO. Without this principle, any police measure—even if no corresponding basis was provided in the StPO^{Footnote 81}—could be applied by circumventing provisions of the StPO designed to protect the rights of the accused. Excluding a hypothetical examination for certain police measures therefore does not comply with the purpose of Section 161(II) StPO, nor does it provide for adequate protection of the accused’s rights. Pursuant to this view, utilization of the material gathered in the present case cannot be based upon either Section 161(II) StPO or Section 161(I) StPO and should therefore be excluded.

3. The BGH’s Interpretation of the Hypothetical Equivalent Intervention Fiercely Debated in Legal Literature

In addition to this, the BGH’s assessment on the legal fiction of the hypothetical equivalent has been perceived critically. The preeminent part of legal literature maintains a strict interpretation of the hypothetical equivalent intervention, meaning that it necessarily extends to formal conditions. The present case concerns the requirement of prior judicial authorization of the measure. Consequently, according to this opinion, the consultation of a judge is an indispensable condition to construe the hypothetical equivalence.^{Footnote 82}

Before^{Footnote 83} and after^{Footnote 84} the decision in question, the Karlsruhe judges have shown a tendency to validate police measures requiring, though not having been preceded, by judicial authorization. Applied to the case of Legendierte Polizeikontrollen, two main arguments can be invoked in explanation.

First, the retrospective validation of a measure cannot be deemed equivalent to previous analysis of the legal situation.^{Footnote 85} These approaches far from guarantee an equal protection level for the accused. The judge who is aware of all the facts would be forced to replace their ex-post perspective with a hypothetical ex-ante perspective, which would, in theory, protect all the guarantees of the StPO. In practice, however, this is nearly impossible. It cannot be guaranteed that the judge will not take into account the outcome of the police measures in their hypothetical ex-ante assessment of the situation, even if subconsciously. Resorting to a material interpretation of the hypothetical equivalent intervention would lessen the degree of judicial control and attenuate the compulsory nature of the provisions laid down in the StPO, as police forces could at any time divert to softer laws.

Second, German criminal procedural law knows the scenario of Gefahr im Verzug (exigent circumstances where time is of the essence)^{Footnote 86} which exempts police forces from awaiting judicial authorization. For instance, when time is of the essence, Section 105(I)(2) StPO requires an order from the prosecution service instead of a judicial search warrant. One could thus deduce that the legislature has already allowed for summary proceedings under certain circumstances. It cannot therefore be assumed that Section 161(II)(1) StPO provides an even broader power for the investigating authorities to stop and search without a warrant, without this having been expressly authorized.

In conclusion, an important view in academic legal literature claims that the interpretation adopted by the BGH is likely to facilitate an “escape to [preventive] police law.”^{Footnote 87} The reproach of tolerating the circumvention of criminal procedural law and the erosion of the accused’s rights cannot be neglected. Even if this argument does not appear justified at the stage of evidence gathering,^{Footnote 88} it becomes relevant with regard to the exploitation of the material gathered. Section 161(II)(1) StPO was presumably designed for chance discoveries, not for the phenomenon of Legendierte Polizeikontrollen; thus, the utilization of the evidence should be prohibited for the latter category.^{Footnote 89}

Nonetheless, practical rationale relating to the tenuous realities of investigations cannot be denied. In some circumstances, effective police work means that the accused needs to remain ignorant about the true situation in order not to endanger broader pre-existing investigations.^{Footnote 90} Alternatively, with awareness of the dangers created by this practice, some suggest dispensing of search warrants only with proper justifications, or instead issuing them only to the accused themselves.^{Footnote 91} Principally, though, it would be more sustainable and secure from a constitutional standpoint to demand legislative action on the point.

1. The Obiter Dictum of the BGH

The BGH advances a further aspect in the obiter dictum, the part of a court decision confronting issues that are not directly related to the case but have arisen in its context. The judges briefly touch upon the fair trial principle, which could be the basis for inadmissible evidence in the case of Legendierte Polizeikontrollen. The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights (ECHR), and encompasses numerous facets, such as the principle of the equality of arms, the right to the inspection of files, the right to be heard by a court, and the right to substantial justification of decisions.^{Footnote 92}

German legal literature assumes that the violation of Article 6 ECHR in connection with the right to due process of law embedded in Article 20 (III) GG may result in the inadmissibility of evidence.^{Footnote 93} Accordingly, this exclusion is classified as a dependent one, as it is based on procedural error.^{Footnote 94}

The BGH had already established a potential connection between a rule of inadmissible evidence on fair trial grounds and Legendierte Polizeikontrollen, though without specifying the exact nature of the proscription. In the present decision, the judges further developed this connection.^{Footnote 95} More precisely, the key point is the doctrine of the Aktenwahrheit und -vollständigkeit (verity and integrity of the files).^{Footnote 96} In the context of Legendierte Polizeikontrollen, the problem that arises is that in accordance with the secrecy of such a police check, the true character of the stop and search measure is not recorded in the files. The prosecution service, however, as “mistress of the investigation proceedings”^{Footnote 97} must be made aware of all ongoing measures and methods so as to perform its role effectively. According to the constitutional judges, the prosecution is responsible for the lawful gathering of evidence^{Footnote 98} and for its application in court. Consequently, comprehensive and correct information from police forces is deemed indispensable to guarantee fair proceedings.^{Footnote 99}

In the present case, no fair trial principle violations were identified by the Court, simply because no violation was complained of by the defense. Nevertheless, this obiter dictum constitutes an interesting step by the BGH. First, it can be interpreted as an indication for future trials and judicial reviews. Second, the police are urged to act in compliance with the principles of verity and integrity of files.^{Footnote 100}

2. Legendierte Polizeikontrollen in Light of Nemo Tenetur se Ipsum Accusare

Another important aspect concerning the right to a fair trial, though not discussed by the BGH in its decision, is the possibility of actively deceiving a suspect and the implications that this has with regard to the principle of nemo tenetur se ipsum accusare, the right not to incriminate oneself. Legendierte Polizeikontrollen also refer to this issue, as the police actively deceive the suspect about the nature of the police check and the existence of ongoing investigations. The German StPO acquiesces to the possibility that the police may deceive suspects in some cases, as in Section 110a StPO, which provides authorization for employing undercover agents. But the StPO negates this possibility in other cases, such as in Section 136a (III) StPO, which states that a confession made under deceit must be excluded as evidence.Footnote ¹⁰¹ Some authors conclude from this dichotomy that German law generally permits the police to actively deceive suspects, even without specific authorization rules. Because German law specifically allows the greatest possible deceit—undercover agents—and only prohibits deceit in the most urgent cases—in an official interrogation—this would indicate that under the German law of criminal procedure, active deceit is generally tolerated.Footnote ¹⁰² Other authors conclude the opposite, maintaining that the mere existence of exclusionary rules proves that the establishment of the truth is not the highest objective of a criminal investigation and that the right to a fair trial contradicts the possibility of deceiving a suspect, at least if not specifically permitted by some provision.Footnote ¹⁰³ The BGH has not yet definitively positioned itself, though it does consider active deceit to be possibly problematic in regard to the right to a fair trial.Footnote ¹⁰⁴

The principle of nemo tenetur is seen under German law as a necessary component of a fair trialFootnote ¹⁰⁵ and as one of the most fundamental consequences of the rule of law and of human dignity.Footnote ¹⁰⁶ While there is unanimity concerning the importance of this right, the scope of it remains unclear.Footnote ¹⁰⁷ A legendierte Polizeikontrolle could be contrary to nemo tenetur. As the result of a legendierte Polizeikontrolle, the suspect believes he was caught due to random police checks. This error, induced by the active deceit of the police, might lead the suspect to confess, which they might not have done if they had known of the true nature of the police check. Whether or not such an error falls under the protection of nemo tenetur depends on the scope of this principle.

According to the BGH, the principle of nemo tenetur signifies that no one may be forced to testify against themselves or to participate in their own conviction. This includes the prohibition of the use of force or direct compulsion to induce a confession. The suspect must be able to decide freely whether they want to contribute to their conviction by confessing or otherwise providing information. According to the BGH, however, only the freedom from force or compulsion is protected, not the freedom from error. Confessing as a consequence of an error induced by the police through active deceit is therefore not protected by the principle of nemo tenetur.Footnote ¹⁰⁸Legendierte Polizeikontrollen therefore do not violate nemo tenetur according to this interpretation. Others view the nemo tenetur principle as more extensive. According to these parts of legal literature, this right protects suspects from all state prompted self-incrimination, including incrimination resulting from any police induced errors.Footnote ¹⁰⁹ Indeed, pursuant to this position, nemo tenetur protects the suspects from being used as a tool against themselves at trial. Deceit is equally as capable of achieving this as compulsion or force; therefore, suspects must be equally protected from police deceit.Footnote ¹¹⁰ Seeing as legendierte Polizeikontrollen are based on police deceit, they violate nemo tenetur according to this interpretation.

The decisive question in this context is how much weight should be given to free will.Footnote ¹¹¹ The scholars’ point of view discussed above is preferable to that of the BGH. The right not to self-incriminate protects the freedom of the suspect to choose whether to confess or not. This freedom is not guaranteed, however, if errors regarding the testimony are not pertinent. A free choice cannot be made unless all relevant circumstances are known to the suspect. For instance, in a case of legendierte Polizeikontrollen, knowing about possibly illegal investigation methods can have an impact on the choice of the suspect to confess. Such information should therefore be regarded as necessary for being able to freely decide on a confession. Interpreting nemo tenetur as only protecting from compulsion is consequently too narrow and cannot satisfy the teleological purpose of this right. Legendierte Kontrollen are therefore highly problematic in light of the right to a fair trial, both with respect to the verity of files and the principle of nemo tenetur se ipsum accusare.