Police search home. Incidental findings

Commentary on the Tribunal Supremo of 26 may 2011

Abstract

The voluntary authorization to enter his domicile was done in relation to formalities instructed by subtraction of a purse and later extraction of money of a cash dispenser by the card removed by what there must be excluded from the test the effects found in the domicile (narcotic substances). The record I effect in the domicile of the defendant previous written authorization and presence of his lawyer, and in the development of this record they found two bags with cocaine as well as plants of marijuana. The lawyer never requested neither the interruption of the record nor that was revoking the assent that the defendant had granted, weigh to have be prepared of the above mentioned faculty on having signed the diligence of authorization. The theory of the flagrancy has been one of the handled ones to give coverage to the chance findings and also that of the rule of the conexidad of the articles 17.4 and 300 of the LECrim, bearing in mind that there is no novation of the object of the investigation but simply «addition». The fact that the finding of evidential elements of a certain crime takes place in the course of an investigation authorized for another different crime he does not suppose the nullity of the finding in proof of post. With regard to the attenuant for drug addiction, the benefit of the attenuation only has application when a relation exists between the committed crime and the lack of drug that suffers the subject, which has not remained accredited. It is not enough to be a drug addict to request the application of attenuating circumstances; and it has to be solved depending on the imputability, or of the incident of the ingestion of the drug in the powers intelectivas and volitional of the subject.