Table of contents

• House search too fast because of 48 km / h Open up, police!
• Seizure of protective motorcycle clothing
• General information on the house search
• The current decision
• “What else should we do??”

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Report: House search too fast because of 48 km / h

House search too fast because of 48 km / h
Open up, police!

Such house searches are legal, but only under certain circumstances. The Stuttgart lawyer Ingo Ralf Becker advises motorcyclists and drives himself.

Michael Schumann

02/14/2013

Robert Huber (50) * reacts to the accusation of the public order office in the small town of Pfullendorf (13,900 inhabitants, Lake Constance area) exactly as any reasonable lawyer would recommend: He is silent, and adamantly. The charge is: The scientist is said to have been too fast on a country road in Baden-Wurttemberg on a summer afternoon in 2012 in his 15-year-old boxer BMW. “So considerable” too quickly, as a 31-year-old judge at a local court in the Baden-Wurttemberg province put it. “So considerable” Specifically, this means: 48 km / h above the maximum permitted country road of 100 km / h – an administrative offense for which the catalog of fines provides for 160 euros, three points and a one-month driving ban.

Seizure of protective motorcycle clothing

In order to clear up this offense, the judge ordered a search of Robert Huber’s house at the instigation of the regulatory office. Your purpose: the “seizure” from “Protective motorcycle clothing (in particular outer clothing) and motorcycle helmets”, it says in the corresponding resolution. The goal, it goes on to say: “If legal proceedings follow, the objects to be found serve the purpose of an inspection by the judge and a possible expert evaluation of signs of wear caused by the person concerned.” In plain English: When it comes to trial, the jacket and helmet are clues to convict Robert Huber as a speedster.

“Yes, I am the owner of this motorcycle”, That’s what Robert Huber says officially – and he adds to MOTORRAD: “I like to drive. And if so, then mostly in a group with friends.” Can he remember being there with the BMW on the day in question? No comment. Robert Huber does not want to burden himself or others. That is his right, also vis-à-vis the Pfullendorf fines office, which sent him a hearing sheet at home. A blurred black and white photo is copied into it. The face under the helmet, of which only one eye with a brow and the nose can be seen in profile, should be his, measured and flashed red-handed with precisely those 148 km / h. Is that him in the photo? Robert Huber is silent.

He only becomes talkative when it comes to what happened around three months later, on a Friday in autumn, at seven in the morning in his apartment: “I was just about to get up when suddenly the doorbell rang. There were three uniformed police officers and an administrative clerk in plain clothes outside the door. I opened it in my bathrobe and one of the policemen told me he had a search warrant here. He immediately held the three-page letter under my nose.” The officer in the door told him that he was looking for his motorcycle jacket and helmet.

Huber read through the decision and couldn’t believe it at first: “They should really be allowed to break into my apartment because I was supposedly driving too fast? “That’s pretty tough, isn’t it ???,” I said to the policeman. He didn’t give me an answer, just said that I could give out my jacket and helmet voluntarily.” That seemed to Huber to be the most sensible thing at the moment: “The jacket, a black Probiker everyday jacket from Polo, was hanging right behind me in the hallway anyway. And the helmet, plain silver by Louis, was on the motorcycle in the garage. For that we went downstairs together. After ten minutes it was all over, the police gave me some kind of receipt for my jacket and helmet, then they got into their patrol car and drove away. Quite a few neighbors looked out of the windows – everyone knows everyone here – I don’t want to know what they were thinking. I felt like a felon.”Upon the experience, Robert Huber went to the lawyer. He lodged a complaint. That was rejected. Now Huber is waiting to see his motorcycle things again in the courtroom. A date for the negotiation has not yet been set.

Jurgen Hess is the head of the Pfullendorf Public Order Office, which applied for the house search. He is also silent on the case of Robert Huber – with reference to the ongoing proceedings. On the subject of house searches of motorcyclists in general, however, he says: “The administrative fines of the city of Pfullendorf have only applied to the local court for house searches in certain cases of traffic offenses by motorcyclists since 2012. So far there have been two cases. Before we apply for a house search, we try other investigations to clarify who was the driver of the vehicle.
If motorcyclists are flashed and the vehicle owner denies the status of a driver or does not provide any information, identification may be possible in this way. A house search may only be carried out by order of a judge and is only possible if there is sufficient suspicion and only in the case of significant traffic violations (for example, if a driving ban is imminent or if a risk to oneself or others is accepted); decisions are made on a case-by-case basis.”

And on the MOTORRAD inquiry, which was the specific reason in 2012 that his office led to a house search of a motorcyclist for the first time: “I only found out in 2012 that such a measure is legally possible.”

* All personal data of the person concerned have been changed by the editorial team

General information on the house search

The search of residential or business premises and the seizure of evidence to identify and transfer a suspect is in principle permitted not only in the case of criminal offenses, but also in the case of administrative offenses.
A search of the apartment comes into consideration not only in the case of speeding violations, but also in the case of other serious road traffic offenses, for example a red light violation.

In general, such a measure, which always represents a considerable interference with the fundamentally protected right to inviolability of the home in accordance with Article 13 of the Basic Law, is only permissible in the case of serious traffic offenses. In addition, further requirements are necessary. Requirements for the apartment search due to traffic offenses First of all, proportionality must be maintained. Here, a balance must be made between the severity of the offense and the extent and impairment. A search of the apartment for minor traffic offenses is therefore ruled out.

In addition, the search of the apartment must also be effective, and therefore absolutely necessary for clearing up the offense. This is lacking if, for example, the affected driver of a vehicle can be identified by means of photos taken during the radar control or other evidence. The home search must therefore be the only means of determining who was responsible for the speeding.

The extent of the possible effects on the reputation of the person affected by the search must also be taken into account. In addition, the person concerned must be given the opportunity to voluntarily surrender the objects to be confiscated and thus avert the search.

The current decision

The search of the vehicle owner’s living space was currently ordered by a local court order. The aim was to confiscate the owner’s motorcycle clothing in order to compare it with the clothing of the driver in the measurement photo.

At 148 km / h instead of the permitted 100 km / h, the speed limit was considerably exceeded, and such a traffic offense could result in a driving ban. Another way of ascertaining the rider of the motorcycle is probably out of the question, as the measurement photo provides few clues with regard to the identity of the rider. It is questionable, however, whether the confiscated motorcycle clothing from the affected vehicle owner can be used as evidence that the speed limit was exceeded.

The reasoning for the decision states that the body measurements of the person concerned can be compared with the confiscated clothing and can therefore serve as evidence in the event of legal proceedings.
In this context, it is stated that motorcycle clothing is generally not rented out and that it therefore allows conclusions to be drawn about the driver on the day of the incident.

At least on this point, the decision of the district court cannot necessarily be followed. The fact that a certain clothing of a vehicle owner matches the clothing of the driver in a measurement photo does not necessarily indicate the driver’s characteristic. For example, the author of this article has already loaned his XT 600 Tenere along with a helmet and motorcycle jacket to a friend in the past.

So the question arises whether a visual inspection of the motorcycle clothing can be used to prove the driver’s status. From the author’s point of view, this is not the case, which is why there is ultimately no need to search the apartment and confiscate motorcycle clothing. In another case, however, the Tubingen Regional Court did not see it that way and with a ruling of December 29, 2011 (Az .: 1 Qs 248/11 Owi) the house search and seizure of
Motorcycle clothing for the identification of an affected motorcyclist deemed suitable and therefore lawful.
Nevertheless, the question arises whether in these cases sparrows are not being shot with cannons. It is not for nothing that § 31a StVZO regulates the imposition of a logbook edition in cases in which the driver of a vehicle involved in a traffic offense cannot be identified. Such a logbook edition would represent a different, more proportionate form of prevention and sanctioning of serious traffic offenses.

“What else should we do??”

Let’s summarize: The police flashed a motorcyclist who is too fast and sent the supposed speeder, the owner of the motorcycle, a ticket. He denies the act, which is his right, and a few weeks later the police are in the door with a search warrant.

Some of us know the former from personal experience. The latter probably only from the “crime scene” on Sunday evening. And so we come to the topic: Here a citizen who may have committed an administrative offense without endangering or even injuring another is treated like a potential criminal.

So that one thing is clear: There are rules of the game that say you mustn’t drive too fast. If you do and get caught, you will pay a fine and may walk for a while. This is completely right. But it is also okay to encroach on the basic right to inviolability of the home in order to enforce these rules of the game?

A policeman who did not want to be named then asked the counter question: “What else should we do if someone doesn’t admit anything?” The answer, which of course must be given by the regulatory agencies and courts whose instructions the police follow, must be: continue as before. Because there have been ways and means to convict speeders without immediately criminalizing them. Anything else would be an indictment of the rule of law. A dangerous one too.

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