(Jan. 5, 2021) On November 26, 2020, the Italian Constitutional Court declared unconstitutional a provision in Presidential Decree No. 309 of October 9, 1990, that allows police to conduct searches and seizures in illegal drug cases without previous authorization from a magistrate. (Decision No. 252 of November 26, 2020 (in Italian).)
Article 103, paragraph 3 of Decree No. 309 provides that “judicial police officers, upon reasons of particular necessity and urgency that do not allow requesting telephone authorization from a competent magistrate, may conduct searches by giving notice, without delay and in any case within 48 hours, to the public prosecutor who, if the conditions are met, validates them within the next 48 hours.”
In the underlying case before the Ordinary Tribunal of Lecce, the evidence consisted of information obtained through searches conducted by the police under telephone authorization from a prosecutor rather than a competent magistrate. The prosecutor did not issue an order validating the search but merely validated the resulting seizure.
The tribunal found that article 103 of the presidential decree violates the Italian Constitution’s protection against illegal searches and seizures, among other rights. The tribunal reasoned that the results of the searches should be excluded from evidence because they were obtained without a valid order. The tribunal referred the issue of the constitutionality of article 103, among other provisions in the decree, to Italy’s Constitutional Court.
Decision of the Constitutional Court
The Court agreed with the tribunal that search and seizure orders must be validated by a reasoned order or the constitutional guarantee against illegal searches and seizures is frustrated.
Invoking the legal doctrine of the “fruit of the poisonous tree,” the Court also found that an improperly conducted search and seizure makes resulting evidence inadmissible in criminal proceedings.
The Court acknowledged that, when an antidrug operation is already in progress and there is a well-founded belief that a search could lead to the seizure of illegal narcotics, police may conduct the search under telephone authorization by a prosecutor. However, the police must obtain an order from an appropriate magistrate that provides the reasons for the search within a reasonable time.