Facts
The complainant, a Brazilian national, was detained by the Zurich Cantonal Police at 07:15 on 28 January 2011 in a bar known as "Kontaktbar" in the Zurich red-light district. She was unable to produce identification and had no papers on her. At the police station, a search of her belongings revealed an iPhone and "apparent client addresses." These data indicated that the complainant was living in Switzerland without a valid residence permit and working as a prostitute without a permit. The police then contacted a witness who confirmed having had sexual intercourse with the complainant for money.
The Zurich District Court convicted the complainant on 7 March 2011 of unlawful residence and illegal employment under Art. 115 para. 1 lit. b and c AuG. The Higher Court of the Canton of Zurich upheld this judgment on 9 March 2012 and imposed a custodial sentence of 45 days, which was fully satisfied by the pre-trial detention and security detention already served. In her appeal to the Federal Supreme Court, the complainant alleged a violation of procedural rules, in particular the admissibility of the evidence obtained through the search of the smartphone.
Considerations
1. Lawfulness of police detention and search of belongings The Federal Supreme Court confirms that police detention under Art. 215 CrimPC serves the purpose of establishing identity and clarifying a possible connection to an offence. The search of items carried (including the smartphone) is permissible only insofar as it is necessary to achieve these objectives. However, the search of the smartphone went beyond the purpose of the detention, as it involved not merely the presentation of objects but the review of stored data. Such a search of records generally requires a public prosecutor’s search warrant under Art. 246 CrimPC.
2. Risk of evidence being lost and independent police action The Federal Supreme Court examines whether the conditions for independent police action under Art. 241 para. 3 CrimPC (risk of evidence being lost) were met. It finds that they were not, since there was no concrete risk of evidence being lost. The address data stored on the smartphone was not at risk of being altered without manipulation of the device. Moreover, the public prosecutor’s office was reachable at the time, so a subsequent order would have been possible. The search of the smartphone was therefore not justified by the risk of evidence being lost.
3. Classification of the violated provision as a procedural rule The Federal Supreme Court considers the failure to obtain a public prosecutor’s search warrant to be a violation of a procedural rule under Art. 141 para. 3 CrimPC. The decisive factor is the purpose of the violated norm: since the search of the smartphone was…