What are the police allowed to do? What are they not allowed to do?
The police operate on the legal basis of the Criminal Code (StGB), the Code of Criminal Procedure (StPO), and the individual state laws on public safety (police law). These laws regulate what the police are and are not allowed to do.
Criminal charges can also be filed against police officers. Although convictions are rare in cases against police officers, these proceedings do have consequences for them. If proceedings are pending against a police officer, they are barred from promotions or salary increases for that period. Furthermore, disciplinary action, such as a salary reduction or demotion, may be taken.
What the Police are allowed to do – and what they are Not
If you are traveling by vehicle
According General traffic control according to §36(5) StVO (Road Traffic Regulations):
The police are allowed to:
- Ask you to stop and leave your vehicle.
- Request your ID, driver’s license, and vehicle registration.
- Check if your warning triangle and first-aid kit are present.
The police are generally not allowed to:
- Search your vehicle.
- Conduct standard sobriety tests such as shining a light in your eyes, giving instructions to walk a line, or touch your nose.
You may again refuse your consent. (Silence counts as consent.) If a police officer wants to look into your eyes and shine a light, you may prohibit it by stating:
“No, this is not part of a general traffic stop under §36(5) StVO. For this, you need my consent, which I do not give.”
Physical Examination under §81a StPO
Blood draws, urine tests, and sweat tests constitute a serious interference with your bodily integrity. They may only be carried out on a suspect and, in theory, require judicial approval.
In practice, this often works differently. In cases of “imminent danger” (Gefahr im Verzug), a police officer may decide to perform the physical examination without a judge’s consent. Imminent danger exists when immediate action is necessary to later prove, for example, that you were under the influence of alcohol at the relevant time.
In any case, there must be actual indications. (Here as well, red eyes are not sufficient. However, the smell of alcohol is a sufficient indication.)
Again, you may refuse your consent:
“No, I do not want that.”
If a police officer attempts to carry out any physical examination without your consent, you may clarify again:
“No, you will not do that; otherwise you will be committing bodily harm in office under §340 StGB.”
A police officer may not take you to the station simply because you are being uncooperative. If an officer claims otherwise, you may again state:
“No, you will not do that; otherwise you will be committing unlawful deprivation of liberty under §239 StGB.”
If you are traveling on foot
What the police are allowed to do:
Determine your identity: that means they may ask for your ID.
They are generally not allowed to search you!
Except with your consent.
Attention! Silence counts as consent. If a police officer announces that they intend to search you, you must respond in order to refuse your consent.
If you answer: “No, you will not do that. I do not agree.”, they may not search you.
As a suspect under §102 StPO (Code of Criminal Procedure)
For this, you must already be suspected of a criminal offense. (For example, possession of drugs.)
Initially, however, you are considered a non-suspect. You only become a suspect if actual indications or facts exist suggesting that you have committed a criminal offense. (For example, having red eyes does not make you a suspect.)
As a non-suspect under §103 StPO
As a non-suspect, the police may only search you if facts exist indicating that this is likely to contribute to the apprehension of a suspect or the securing of evidence.
This would be the case, for example, if an object related to a criminal offense (committed by another person) were handed to you in front of the police.
If a police officer wants to search you without your consent and without §§102, 103 StPO applying, you can tell them:
“You will not do that, otherwise you will be committing the offense of prosecuting an innocent person under §344 StGB.”
What you are allowed to do:
- Refuse to make statements!
A police officer may try during an informal questioning to find out things that indicate a criminal offense. You can counter this by responding:
“I will not make any statements on this.”
If you say nothing, then nothing can be used against you.
(Additionally, you do not have to comply with police summonses, whether as a witness or as a suspect. Only summonses from the public prosecutor’s office or the court are mandatory. In any case, you should speak with a lawyer beforehand. - Request a police officer’s service ID to record their information.
- With this data, you can, if necessary, file a criminal complaint and a criminal charge. (Important: Always file both, as some offenses are prosecuted only upon a formal criminal charge. This must be filed within three months of the incident.) You should not file them with the police, but with the public prosecutor’s office.