Does a police officer have the right to conduct a personal search without witnesses. Inspection or Inspection of personal belongings carried by a citizen

Body searches should not be confused with searches at the entrance to large events or secure areas. The first option is a forced action, an examination for objects of the offense. The second is a voluntary act, if you refuse it you simply will not be allowed into a certain territory. A personal search is an inspection of the person himself and the things he is wearing.

Personal search procedure

A personal search does not presuppose the prior receipt of any documents, sanctions (like a search warrant) and violation of the structural integrity of things (for example, cutting the lining of clothing). In addition to the police, the FSB, the customs service, the drug control service, etc. have the right to conduct it. According to Part 4 of Article 5 of the Federal Law “On the Police”, before starting, your rights and the reason for the search must be explained to you. To carry out this procedure, it is enough even for the police to suspect that you have items of a crime on you (poisonous, radioactive substances, ammunition, drugs, etc.).

Body searches can only be carried out by a person of the same gender as you. During the inspection, the presence of two witnesses of the same sex is required. Moreover, police officers cannot be witnesses: they must be citizens who are not interested in the outcome of the case and have reached the age of majority. A protocol is drawn up regarding the personal search (as well as the search of personal belongings or a vehicle), or a similar entry is made in the arrest report. After signing, you have the right to receive a copy of the protocol. It is advisable to do this so that the protocol does not become overgrown with additions without your knowledge.

The above points have a number of nuances. For example, a police officer is not required to provide a copy of the search report unless you request it. If video or photographing of the inspection was carried out, the protocol must contain the necessary note about it. In exceptional cases (if there is a suspicion that you have a weapon), the search may be carried out without witnesses. The law does not yet provide for a clear formulation of exceptional cases, but the police officer is obliged to clearly justify in the protocol the reason why the search was carried out without witnesses.

Important points

A search is carried out when the police have reason to believe that a person has items that could be used to commit crimes. These are drugs, weapons, ammunition, explosives, radioactive and toxic substances. To apply the procedure to police officers, even a simple suspicion that a person has such objects is enough.

Unfortunately, there are no special regulations on the content of the inspection itself. Here you can only refer to Part 3 of Article 1.6 of the Code of Administrative Offenses of the Russian Federation, which states that when using administrative coercive measures, actions (or inaction) that degrade human dignity are not allowed.

67. The procedure and tactical actions of police officers when conducting personal searches of citizens.

The concept of personal search is disclosed in Art. 27.7 of the Code of Administrative Offenses of the Russian Federation, according to which a personal search and search of things is an examination of things carried out without violating the structural integrity and belongs to the group of administrative coercive measures. This means that a person can be subjected to a personal search or search of things on him, regardless of the desire of the person being searched, i.e. forcibly. At the same time, a personal search can be both an administrative and preventive measure and a measure of administrative and procedural support.

Personal search as an administrative warning measure is aimed at preventing citizens from committing any actions that could lead to an accident, emergency or preventing, identifying, suppressing crimes and administrative offenses. Unlike personal search as a measure of administrative procedural support, it is not associated with an already committed offense and is of a pronounced preventive nature. This is an inspection of citizens in airport, before sports events, etc. The basis for conducting a personal search in this case will be established flight rules, etc. Any documentation of the personal search in such cases is not expected, except in cases where crimes or administrative offenses are identified during the search.

Personal inspection- This is not the only action during which police officers examine a person’s clothing. It is necessary to distinguish a personal search from similar actions, such as an external search and a body search. Items discovered during the search are entered into the personal search protocol, indicating their identification characteristics. Statements of intended material should be avoided, replacing them with definitions that are beyond doubt. Thus, a watch supposedly made of gold is described as a watch with a yellow metal case. The number of banknotes is indicated not only in the amount, but also in the denomination of the bills. Discovered items that may be important as evidence for an administrative offense or a criminal offense identified during an inspection are packaged in such a way as to prevent their loss or substitution. Packed items are sealed with a package seal, which is certified by the signature of the person conducting the inspection and the signatures of the witnesses in whose presence the inspection was carried out.

At the end, the person conducting the search, in the presence of witnesses and the person being searched, reads the protocol out loud and, making sure that no statements or additions have been received from the witnesses or the person being searched, makes an appropriate entry in the protocol.

Personal inspection	Personal search	External inspection
Art.	27.7 Code of Administrative Offenses of the Russian Federation	Art.
185 Code of Criminal Procedure of the Russian Federation	Art.	266 UPPS
Commitment of an administrative offense by a person	If there is evidence that the person has instruments of crime and other objects or documents relevant to the criminal case	Commitment by a person of any offense when brought to the police
In the presence of witnesses, without violating the structural integrity	In the presence of witnesses, by order of the investigator, inquirer, with the sanction of the court	Conducted without the participation of witnesses, without drawing up a protocol, has no evidentiary value

Detection of instruments or objects of an administrative offense The following inspection procedure is provided:

Explain to the person the grounds for the administrative search.

Invite the person to present documents, things and other items that are an instrument for committing an administrative offense or the subject of an administrative offense.

Personal search is carried out by a person of the same sex.

Invite two witnesses who meet the following conditions:

one gender with the person being searched;

adults;

not interested in the case;

in a sober state;

sane;

are not part of the inspection team.

The inspection should be carried out in a room that excludes access to unauthorized persons and meets the rules of sanitation and hygiene.

During inspection, ensure:

safety of the person being searched;

health;

personal dignity;

a ban on the collection, storage, use and dissemination of information about a person’s private life without his consent, except in cases provided for by federal law.

The inspection of things in the possession of an individual must be carried out in the presence of 2 witnesses.

In this case, the inspection of things carried by an individual (carry-on luggage, luggage, hunting and fishing gear, harvested products and other items) is carried out by authorized officials.

In exceptional cases, if there are sufficient grounds to believe that an individual has weapons or other items used as weapons, a personal search and search of things on the individual may be carried out without witnesses (this provision is contained in Part 4 of Art. 27.7 Code of Administrative Offenses of the Russian Federation).

If necessary, photography, filming, video recording, and other established methods of recording material evidence are used, which is recorded in the inspection report.

A protocol is drawn up about a personal search, search of things in the person’s possession, or a corresponding entry is made in the protocol on delivery or in the protocol on administrative detention.

Seize physical evidence of the offense.

The fact of seizure of objects, things, documents should be documented in an administrative protocol of seizure in 2 copies (one to be handed over to the person subjected to inspection) or an entry should be made in the protocols.

The examination of a woman should be carried out by a woman. The female suspect may be handcuffed until the police officer arrives. The exception is cases when it is known for sure that the person being searched can carry out an armed attack (for example, a woman is suspected of committing or preparing a terrorist act).

When starting an inspection, you should quickly probe your pockets, sleeves, and belt from the outside in order to remove weapons and other offensive items. It is recommended to check the detained person from the right and then from the left side.

Then, from top to bottom, carefully examine the headdress, outerwear, coat, jacket, trousers, and shoes of the person being examined. If necessary, you can invite him to unbutton his coat (take it off). You should carefully feel the body and clothes, since one touch is not enough to detect what is hidden.

The search for weapons should be carried out primarily in traditional places of carrying: under the arms, around the belt, in clothing pockets. Then examine the hair, forearm, back (between the shoulder blades), palms, crotch, belt area (the belt itself can be a weapon, and its buckle is actually the handle of a knife), etc. If necessary, force the detained person to take off his clothes and head equipment for further inspection.

You should inspect clothing and shoes with caution so as not to injure your hands with a blade, razor, awl or other sharp objects.

When identifying, probing suspicious objects, it is advisable to remove them from clothing in the presence of attesting witnesses (witnesses), with a view to subsequently using them as material evidence. Remove any suspicious items found from your pockets by turning the lining inside out. Persons being examined should not be allowed to take things out of their pockets themselves. A ballpoint pen can be a piercing or shooting weapon.

In some cases, when there is reason to believe that the instruments of crime can be carefully disguised in household items, jewelry (fountain pens, canes, umbrellas, rings, lighters, shoes) or attached with an elastic band to clothing or the body, the inspection should be carried out especially carefully.

Carefully examine parts of the body that are covered with a plaster, bandaged with a bandage, or with a plaster cast applied. Cutting objects, saws, wire for opening handcuffs, drugs, jewelry, money, etc. may be hidden under medical bandages. It is advisable to involve a doctor to examine the bandages.

If weapons or other prohibited items that are material evidence of an offense are identified, do not stop the inspection, since the offender may have several weapons.

Make a note about the inspection in the report, indicating in detail what was discovered and to whom the discovered items, documents, and valuables were transferred. If nothing was seized, a corresponding entry is made in the report.

When conducting an inspection, it is necessary to carefully examine (palp) all of the detainee’s clothing. Experienced criminals specially prepare their clothes to hide prohibited items.

Hiding places for prohibited items may be:

1. Clothes: pockets, camouflaged pockets in sleeves, on the back, in the hems of clothes, under the lining, in the collar, under the collar, in or under hats, in shoes, under the insole, in heels, etc.

2. On the body: in special belts with pockets, in fastened bags, in flat flasks with special fastenings, in natural body cavities, under bandages, including bloody ones, plasters, etc.

3. In things: in secret pockets, in double bottoms, walls, lids, in thermoses, in milk cartons, in books (between specially cut sheets), etc.

A citizen turned to us for legal advice with the question: Is a police officer required, when conducting an inspection or search of my personal belongings, to draw up an inspection report and a search report, respectively? What actions can a police officer perform during an inspection or search? Does a security guard in a store have the right to independently search personal belongings on a citizen?

To understand what an inspection or inspection is and what the fundamental difference is between them, you must first understand what an Inspection is.

An inspection is a procedural action and a measure of administrative coercion. The procedure for conducting an inspection is quite strictly regulated by the Code of Administrative Offenses (CAO RF).

What is Inspection

This list is exhaustive and is not subject to other, expanded interpretation. As we see, this list does not include store or supermarket security staff. A demand made by a security officer and addressed to a citizen to provide things that are in his possession illegally. Security officers only have the right to demand that the selected product be removed from the basket, and only when these products are the property of the store. Once you have purchased them, these goods become your personal property.

The video presented describes an example of what security officers and sellers were not entitled to do.

In case of disputes with store employees and if the dispute cannot be resolved peacefully, it is always necessary to call the police, and we recommend recording all disputes using audio or video.

Seal

1. Personal search, examination of things that are on an individual, that is, an examination of things carried out without violating their structural integrity, is carried out if necessary in order to detect instruments of committing or objects of an administrative offense.

2. Personal search and search of things in the possession of an individual are carried out by officials specified in Articles 27.2, 27.3 of this Code.

3. A personal search is carried out by a person of the same sex as the person being searched in the presence of two witnesses of the same sex.

Inspection of things carried by an individual (carry-on luggage, luggage, hunting and fishing tools, obtained products and other items) is carried out by authorized officials in the presence of two witnesses or using video recording.

4. In exceptional cases, if there are sufficient grounds to believe that an individual has weapons or other items used as weapons, a personal search or search of things on the individual may be carried out without witnesses.

5. If necessary, photography and filming, and other established methods of recording material evidence, are used.

6. A protocol is drawn up about a personal search, search of things that are with an individual, or a corresponding entry is made in the protocol on delivery or in the protocol on administrative detention. The protocol on a personal search, examination of things in the possession of an individual, indicates the date and place of its preparation, position, surname and initials of the person who compiled the protocol, information about the individual subjected to personal search, the type, quantity, and other identifying characteristics of things , including the type, brand, model, caliber, series, number, other identification features of the weapon, the type and quantity of ammunition, the type and details of documents found during the inspection and carried by the individual.

7. In the protocol on a personal search, examination of things in the possession of an individual, a record is made of the use of photography and filming, and other established methods of recording material evidence. Materials obtained during a personal search, examination of things in the possession of an individual, using photography and filming, and other established methods of recording material evidence, are attached to the corresponding protocol.

8. The protocol on a personal search, examination of things in the possession of an individual, is signed by the official who compiled it, the person against whom proceedings are being conducted for an administrative offense, or the owner of the things subjected to search, by attesting witnesses in the case of their participation. If the person against whom the proceedings are being conducted, the owner of the things subjected to inspection, refuses to sign the protocol, a corresponding entry is made in it. A copy of the protocol on the personal search, the search of things in the possession of an individual, is handed over to the owner of the things subjected to search, at his request.

Comments to Art. 27.7 Code of Administrative Offenses of the Russian Federation

1. Part 1 of this article reveals the content of the concepts “personal search”, “inspection of things carried by an individual” as an examination of things carried out without violating their structural integrity. It is emphasized that a personal search and search of things on an individual are carried out in order to detect the instruments or objects of an administrative offense.

In this regard, it is necessary to distinguish personal search as a measure to ensure proceedings in a case of an administrative offense (procedural measure) from coercive measures not related to administrative offenses, carried out on the basis of the provisions of Part 3 of Art. 55 of the Constitution of the Russian Federation. Thus, in accordance with federal laws, the powers of a number of officials are established to apply coercive measures against a citizen, regardless of whether the latter has committed an administrative offense or crime. For example, in accordance with the Air Code of the Russian Federation, employees of the authorities are involved in the pre-flight and post-flight inspection of passengers, baggage, including items carried by passengers, crew members, civil aviation personnel, on-board aircraft supplies, cargo and mail. internal affairs in transport (Article 85). Article 11 of Federal Law No. 35-FZ of March 6, 2006 “On Combating Terrorism” (as amended and supplemented) provides for the right of persons conducting a counter-terrorism operation to carry out when passing (travelling) into the area where such an operation is being carried out and when exiting ( exit) from the specified zone, personal search of citizens, search of things on them, search of vehicles and things carried on them, including with the use of technical means. Similar provisions are provided for in Art. 12 of the Federal Constitutional Law of May 30, 2001 N 3-FKZ “On a State of Emergency” (as amended and supplemented), Art. 50 of the Federal Law of March 30, 1999 N 52-FZ “On the sanitary and epidemiological welfare of the population” (as amended and supplemented) and the norms of some other laws. Despite the similarity of these coercive measures with measures to ensure proceedings in a case of an administrative offense, their identification is not possible, since the former are designed to ensure the immediate protection of the public interests of citizens of the Russian Federation in the field of security, and the latter are directly related to facts of unlawful behavior.

2. This article establishes an exhaustive list of officials authorized to conduct a personal search, including officials authorized to carry out delivery (Article 27.2) and administrative detention (Article 27.3).

3. From the standpoint of compliance with the rule of law, protection of the rights and freedoms of man and citizen, the provision of this article on conducting an inspection with the participation of two witnesses of the same sex as the person being inspected is of great importance. The right to conduct a personal search in exceptional cases without the participation of witnesses is due to the need to ensure the personal safety of persons authorized to conduct a personal search, as well as other citizens. When conducting a personal search, the safety and personal dignity of the person being searched, as well as the rules of sanitation and hygiene, must be ensured.

4. When applying Part 5 of the commented article, it is necessary to take into account the provisions of Art. Art. 26.2, 26.6 - 26.8 of the Code.

5. It is very important for the subsequent decision on a case of an administrative offense to strictly comply with the provisions of Parts 6 and 7 of this article. If things and documents are confiscated during a personal search, a record of such confiscation must be made in the protocol on its conduct. When drawing up a protocol on the inspection, it is also necessary to take into account the provisions of clause 2, part 4, art. 28.1 of the Code.

One of the guarantees against unlawful inspection is the provision of delivering a copy of the protocol on the personal search and inspection of things to the owner of the things subjected to search.

6. The provisions of the commented article on personal search should be distinguished from the investigative action - a personal search conducted in accordance with Art. 184 Code of Criminal Procedure of the Russian Federation.

. These measures consist of an examination of things, carried out without violating their structural integrity, and are carried out, if necessary, in order to detect instruments or objects of an administrative offense (Article 27.7 of the Code of Administrative Offenses).
The administrative search procedure differs from a search in that it does not require the prosecutor’s sanction and a police officer or other authorized person can only inspect a person’s personal belongings.
Despite the fact that a personal search and search of things do not require the sanction of a prosecutor or judge, guarantees of legality must be observed when carrying out this action, since the use of these measures is associated with the restriction of the constitutional rights of citizens to personal integrity (Part 2 of Article 22 of the Constitution) and the rights possession, use and disposal of property (Part 2, Article 35 of the Constitution).
The Code of Administrative Offenses establishes the following guarantees of legality in the conduct of personal searches and searches of things in the possession of an individual (Article 27.7):
an inspection may be carried out only in connection with an offense committed and for the purposes provided for by law: detection of instruments for committing an offense or objects of an administrative offense;
Only those officials who have the right to carry out delivery and administrative detention are authorized to carry out personal searches and searches of things (Articles 27.2 and 27.3 of the Administrative Code);
before the inspection procedure, the official is obliged to invite the offender to present documents confirming his identity, things or other objects that served as the instrument or subject of the offense;
A personal search is carried out by a person of the same sex as the person being searched, in specially designated premises that meet the requirements of sanitation and hygiene, in the presence of two witnesses of the same sex. During a personal search, the safety and health of the citizen, his personal dignity, as well as the safety of the information received concerning the identity of the person being searched must be ensured;
inspection of things carried by an individual (carry-on luggage, luggage, hunting or fishing gear, harvested products and other items) is carried out by authorized officials in the presence of attesting witnesses. In exceptional cases, if there are sufficient grounds to believe that an individual has weapons or other objects that can be used to cause harm to the life and health of other persons, a personal search, search of things on the individual may be carried out without witnesses;
when inspecting things, their safety and presentation must be ensured;
the conduct of a personal search, search of things in the possession of an individual must be documented in a protocol or a corresponding entry in the protocol on delivery or in the protocol on administrative detention.
The protocol on a personal search and examination of things in the possession of an individual shall indicate:
date and place of its preparation;
position, surname and initials of the person who compiled the protocol;
information about the individual subjected to personal search;
information about the type, quantity, and other identification features of things (including the type, brand, model, caliber, series, number, and other identification features of weapons, the type and quantity of ammunition);
information about the type and details of documents found during the inspection that are in the possession of an individual.
The protocol on a personal search, examination of things in the possession of an individual, is signed by the official who compiled it, the person against whom proceedings are being conducted for an administrative offense, or the owner of the things subjected to search, as well as by attesting witnesses. If the person against whom the proceedings are being conducted, or the owner of the things subjected to inspection, refuses to sign the protocol, a corresponding entry is made in it.
If necessary, during an inspection, photography, filming, video recording, and other established methods of recording material evidence are used, and this fact must be recorded in the protocol. Materials obtained during a personal search, examination of things in the possession of an individual, using photography and filming, video recording, etc., are attached to the corresponding protocol.
Here are some practical recommendations on how to behave during a personal search in order to avoid possible more serious consequences for yourself.
1. In practice, there are often cases when police officers, when conducting a personal search, try to plant objects that do not belong to the person being searched. These could be drugs, counterfeit banknotes, weapons, stolen items, etc. The result of such illegal actions by police officers may be the initiation of a criminal case against you, detention and, as a result, conviction. Therefore, if some things or drugs were planted on you during the search, you must write down in the protocol that these things do not belong to you. Things must be described in detail, but in no case should you write: “Drugs do not belong to me.” In this case, the policeman’s next question will be: “How do you know that these are drugs?” In this case, it will be futile to explain to him that the method of packaging heroin or cannabis is shown on all crime reports on almost every television channel. It is necessary to write: “A small package the size of a matchbox, presumably cellophane, does not belong to me.”
2. In accordance with Part 2 of Art. 11 of the Law on Militia, police officers have the right, if there is sufficient information that citizens have weapons, ammunition, explosives, explosive devices, narcotic drugs or psychotropic substances, to carry out, in the manner established by federal law, a personal search of detainees, search them items, hand luggage and baggage, seize the specified items, means and substances in the absence of data on the existence of legal grounds for their carrying and storage. The degree of “sufficiency of data” on the presence of prohibited items is interpreted by the police freely and at their own discretion, most often the wording is given: “in connection with the counter-terrorism operation.” Therefore, it is necessary to remember that on the spot, that is, without carrying out an administrative detention with delivery to the police station, a police officer can only invite you to personally present for inspection your personal belongings in your pockets, the contents of briefcases and bags; however, he should not touch them with his hands. You cannot place your belongings in a police car; show documents only from your own hands; immediately remove purses and wallets after presenting their contents. If for some reason you do not want to show a police officer the contents of your pockets or bag in the absence of witnesses, you always have the right to demand a search in compliance with all guarantees provided by law.
3. Sometimes, before drawing up a report, police officers leave the detainee in the office or lock him alone in a temporary detention facility (the so-called monkey house) for an indefinite period and leave for a while. Do not touch objects around you with your hands during this period of time. Anything can be on the policeman's desk: shell casings, bags, papers. Touching them means leaving fingerprints. This is how evidence is fabricated.
4. If during the arrest you feel or notice that something has been placed in your pocket, bag or wallet, do not touch this object under any circumstances or try to throw it away. In any case, in order to procedurally record the presence of things prohibited by law (weapons, drugs, etc.) in your possession and set the case in motion, the search must be carried out in accordance with the requirements of federal law, i.e., with the participation of witnesses. Before the search procedure, make a statement that, in your opinion, the police officers planted something that did not belong to you, and demand that your words be entered into the protocol in the presence of witnesses. If you try to throw away or otherwise get rid of a discarded item, you risk leaving your fingerprints on it. In this case, it will be much more difficult to prove that the item was planted.
If you follow these recommendations, you can say with a high degree of probability that in three hours you will be free, firstly, because the period of administrative detention is three hours, and secondly, because even the most stupid and evil police officer There is no reason to get involved with a legally literate person.