This document discusses the legal and technical aspects of obtaining evidence in drug trafficking cases in Spain and Europe. It analyzes two main types of evidence: entrance and house searches, and interventions of postal and telephone communications. For entrance and searches, it outlines the four cases where the right to home inviolability can be restricted, as well as the requirements for valid consent, judicial warrants, cases of flagrancy, and justifications. For communications interventions, it discusses the requirements for valid postal and telephone wiretaps according to the Spanish Constitution and laws.

1. Module V. LEGAL AND TECHNICAL ASPECTS
IN OBTAINING AND VALIDATING OF EVIDENCE IN
THE NATIONAL AND EUROPEAN SCOPE.
José Aróstegui Moreno, PhD, Professor
Project JUST/2011/ISEC/DRUGS/AG/3671

2. I.-INTRODUCTION
The evidence to prove the crime of drug trafficking is obtained by the
judicial police, mainly from the practice of two measures of inquiry, which
are:
On one side, the entrance diligence and house search and, secondly, the
diligence of intervention of postal and telephone communications.
Project JUST/2011/ISEC/DRUGS/AG/3671

3. II.- ANALYSIS OF THESE TWO DILIGENCES OF EVIDENCE
A.- ENTRANCE DILIGENCE AND HOUSE SEARCH
The legal regulation of this diligence is found in Article 18.2 of the Spanish
Constitution, which states that the home is inviolable, except-sets the
precept-that concurs the consent of the owner of the home, court
resolution or flagrant crime.
In which cases can be restricted the right to inviolability of the home?
Project JUST/2011/ISEC/DRUGS/AG/3671

4.  It can be restricted in four cases :
1.- When the consent of the registered holder takes place
2. – By Judicial Writ authorizing the entrance and house search
3.- In case of flagrant crime
4.- When a cause of justification attends

5. REQUIREMENTS THAT MUST BE SATISFIED IN ORDER TO A VALID CONSENT OF THE
REGISTER HOLDER FOR THE ENTRY AND REGISTRATION
1.- Consent is provided by an adult person
2.- Consent is given in a consciously and free way
3.- That entrance into the house is expressly authorized
4.- Is given by the registered holder
5.- Consent to enter the home must be for a specific issue
REQUIREMENTS OF A VALID GRIT AUTHORIZING THE ENTRANCE DILIGENCE AND HOUSE
SEARCH
The fundamental requirement is that the Writ is sufficiently motivated
Project JUST/2011/ISEC/DRUGS/AG/3671

6. CONDITIONS TO BE SATISFIED TO UNDERSTAND THAT THERE IS A FLAGRANT CRIME
THAT ALLOWES THE POLICE THE ENTRANCE AND REGISTRATION OF A HOUSE
WITHOUT JUDICIAL ORDER
Two requirements:
1.-That a crime is occurring
2. Urgency of the police to enter the home to arrest the offender
Project JUST/2011/ISEC/DRUGS/AG/3671

7. WHAT ARE THE CAUSES OF JUSTIFICATION THAT LEGITIMIZE THE ENTRY OF THE
POLICE IN A HOME WITHOUT JUDICIAL ORDER?
Project JUST/2011/ISEC/DRUGS/AG/3671
There are three justifications that allow the police to enter a home without a
warrant
1.—Necessity
2.- Detention of a person for whom there is a warrant of arrest
3.- Suspension of the right to inviolability of the home by the administrative
authority

8. B.- DILIGENCE OF INTERVENTION OF POSTAL AND TELEPHONE COMMUNICATIONS
1.- INTERVENTION OF THE POSTAL COMMUNICATIONS
The Constitution provides in Article 18.3 that postal communications are
secret and that this right may be restricted only by court resolution.
What are the objects on which correspondence is introduced and that are
not protected by the secrecy of correspondence?
a.- Green label post packages
b.- Packages that for its weight and size are not fit to hold correspondence
c.- Suitcases, briefcases, vanity cases, travel bags containing
correspondence
Project JUST/2011/ISEC/DRUGS/AG/3671

9. Requirements to agree postal interventions
1.- Court resolution
2.-That resolution is sufficiently motivated
2.- INTERVENTION OF THE TELEPHONE COMMUNICATIONS
According to Article 18.3 of the Constitution, telephone communications
are secret.
Despite this protection, such communications can be intercepted in the
manner required by Article 579.2 of the Criminal Procedure Act.
Project JUST/2011/ISEC/DRUGS/AG/3671

10. LEGAL CONSTITUTIONAL REQUIREMENTS THAT MUST BE FULFILL IN ORDER THAT
TELEPHONE INTERVENTIONS ARE VALID
The Constitutional Court establishes ten requirements that must be fulfill in order to the
wiretap to be valid.
The null-fullfilment of any of the requirements carries the nulity of evidence obtained and
all the evidence derived therefrom
Project JUST/2011/ISEC/DRUGS/AG/3671

11. REGULAR LEGAL REQUIREMENTS TO BE MET FOR TELEPHONE INTERVENTIONS IN
ORDER TO MAY BE RATED AS EVIDENCE ON TRIAL
These requirements refer to the protocol into the criminal process of the
content of wiretap recordings to be valued by the trial court
If ordinary legal requirements are not met, the evidence obtained will be
null, although the contents of the same may be proved by other means
Project JUST/2011/ISEC/DRUGS/AG/3671