Nobody may enter the home of a Spanish national or foreign national resident in Spain without their consent, except in the cases and in the manner expressly provided for under law. The Examining Magistrate may order entry and search, day or night, if urgency makes this necessary, of any building or enclosed space, or part of it, which is the domicile of any person, but always with the prior consent of the interested party in accordance with the provisions of article 6 of the Constitution, or, if there is no consent, by virtue of a reasoned warrant which will be notified to the interested party.
• for the search of vehicles, domiciles, offices, residences, etc.
Investigating Court/Central Investigating Court carrying out the investigation is entitle to authorize the house search, during the day or night, of all public buildings and places, wherever they may be located, where there are indications that the accused, or effects or instruments of the crime, or books, papers of other objects which may serve for Discovery and verification are to be found there.
To enter and search the Chambers of any of the Co-Legislative Bodies, the Judge Will need authorisation from the relevant President.
To enter and search churches and other religious places, sending a message to the persons in charge of them will be sufficient.
To search the Palace where the Monarch resides, the Judge will seek a royal warrant via His Majesty’s High Steward.
In Royal Houses where the Monarch is not to be found in residence at the time of the search, a warrant will be needed from His Majesty’s Head of service, or employee, who is in charge of custody of the building, or the person substituting them at the time of the request, if the former is absent.
To enter and search buildings used as the residence or offices of the representatives of foreign national accredited by the Spanish Government, the Judge will request their leave to do so, with a respectful communiqué which will request that they answer within twelve hours.
For foreign warships, if there is no authorisation from the Commander, this will be requested from the Ambassador or Ministry for the nation it belongs to.
The residences and offices of Foreign Consulates may be entered having sent a polite message beforehand and observing the formalities provided for under the Spanish Constitution and in law.
• for urgent searches:
1.- Members of the police may, under their own authority, immediately arrest persons where there is an arrest warrant for them, where they are caught in flagrante delicto, where an offender, immediately chased by Members of authority, hides or takes refuge in a house or, in cases of exceptional or urgent need. They may also, for these reasons, search such places and seize such effects and instruments as are found in them and which may be related to the crime prosecuted. Immediate account will be given to the competent Judge of the search carried out with an indication of the reasons causing it and the results obtained from it.
2.- The Examining Magistrate may, in all public buildings and places, order entry and search, day or night, if urgency makes this necessary, of any building or enclosed space, or part of it, which is the domicile of any Spanish national or foreign national resident in Spain, but always with the prior consent of the interested party in accordance with the provisions of article 6 of the Spanish Constitution, or, if there is no consent, by virtue of a reasoned warrant which will be notified to the interested party immediately, or, at the latest, within twenty-four hours of being issued.
• limitations regarding the hours when a search can be made:
Where the search is carried out in the domicile of a private individual and the day is over before it is finished, the person making the search will request the interested party, or their representative, if present, for permission to continue into the night. If they refuse, the measure will be suspended, except for the provisions of articles 546 ( all public buildings and places), with the premises or the furniture where the search must continue being closed and sealed, if this precaution is considered necessary to prevent a person escaping or theft of the things being searched for. The person carrying out the search will also warn those to be found in the building or place of the search that they must not remove seals, or break the locks, or let other persons do so, under the liability provided for in the Criminal Code.
• authorities competent to authorise
The authorities that shall authorise the request are the competent Investigative Judge.
A warrant for entry and search of a private domicile will always be grounded and the Judge will specify in it the building or enclosed space where it must take place, if it will only take place during the day and the Authority or civil servant carrying it out. The warrant shall contain a description of the facts under investigation, their criminal classification, as well as a reasoning on the proportionality and necessity of the measure, indicating the purpose of the measure
The search will be made in the presence of the interested party or the person legitimately representing them. If the former is not there or did not wish to appear or appoint a representative, it will becarried out in the presence of a member of their family, of legal age. If there is none, it will be done in the presence of two witnesses who reside in the same town. The search will always be made in the presence of the Clerk of the Court or Tribunal authorising it, or the Clerk to the duty service taking their place, who will draw up arecord of the result, of the legal measure and its incidences, which will be signed by all those present. Nevertheless, where needed, the Court Clerk may be substituted in the manner provided for in the Judiciary Act. Resistance by the interested party, their representative, family members and witnesses to attend the search will give rise to the liability stated in the Criminal Code for those convicted of serious disobedience to Authority, without prejudice to the measure being carried out. If the persons or objects sought are not found and there is no suspicious prima facie evidence, a certification of the act will be issued to the interested party if they request it.