Ruling [DEU] ¦ BVerfG Limits Home Searches: Concrete Predicate Offence Needed for Money‑Laundering Warrants

Constitutional limits on searches in suspected money‑laundering cases: BVerfG 2 BvR 2992/14 (31 January 2020)

The Federal Constitutional Court held that a residential search ordered on suspicion of money laundering violated Article 13(1) of the Basic Law because the courts below had not identified concrete, non‑speculative indications that the funds at issue derived from a catalogue predicate offence under § 261(1) sentence 2 StGB. The decision clarifies that, for a search of the home to be justified in a money‑laundering investigation, there must be both indications of a money‑laundering act and specific, articulable grounds to suspect one of the statutory predicate crimes.

Background and procedural posture

The case arose from a suspicious activity report by a bank concerning numerous cash deposits into the complainant’s account between 2010 and 2012, totalling approximately €58,090, with subsequent cash withdrawals and transfers of about €16,710 to a Pakistani account. The public prosecutor opened an investigation for suspected money laundering. The local court ordered a search of the complainant’s home, person and vehicles under § 102 StPO, seeking records concerning the incoming and outgoing cash movements, travel to Pakistan, contacts and possible payers. The search was executed; a work contract, a tax card copy, a planner and a payment receipt were seized. The complainant challenged the search and the subsequent seizure decisions through the ordinary criminal courts without success. The Bundesverfassungsgericht (BVerfG) then reviewed a constitutional complaint alleging an Article 13(1) infringement.

Legal issue presented

The central legal question was whether a residential search for money‑laundering evidence may be based on an initial suspicion that lacks concrete, non‑speculative indications the funds derive from one of the offences listed in § 261(1) sentence 2 StGB. Concretely, the complaint argued that the search warrants rested on inference and speculation and failed to satisfy the “double initial suspicion” standard the complainant said the Court’s earlier case law required: suspicion of the laundering act and suspicion of a specific catalogue predicate.

Court’s reasoning and holding

The Chamber accepted the constitutional complaint in part and found a violation of the home‑privacy guarantee in Article 13(1) GG. The Court stressed three interlocking principles.

First, the home is a core sphere of personal life meriting heightened constitutional protection; searches are severe intrusions that must be justified by a suspicion of a punishable act grounded in concrete facts rather than vague inferences.

Second, a money‑laundering search requires a twofold showing: credible indications of a money‑laundering act and concrete, plausible indications that the laundered assets stem from one of the catalogue predicate offences listed in § 261(1) sentence 2 StGB. The predicate offence is not a mere formalism; it is the element that imparts the “taint” making otherwise ordinary behaviour criminal in the context of money laundering. The Court therefore rejected the prosecution’s and lower courts’ reliance on the lower threshold used for suspicious‑transaction reporting under the Anti‑Money Laundering Act (GwG), noting those regulatory reporting duties are intentionally set at a lower standard and cannot be transposed wholesale to the criminal law threshold for invoking intrusive measures.

Third, while the initial suspicion need not identify the precise factual details of the predicate offence, the suspicion must do more than indicate the money might stem from “some” criminality. Instead, it must include concrete factual pointers allowing an investigator or court to see why a statute‑listed predicate might be the source of the funds. If only speculative explanations exist or if available facts point to non‑catalogue misconduct (for example alleged wage‑related offences that do not, in the relevant mode of commission, appear in the § 261(1) catalogue), a residential search cannot be justified.

Bastian Schwind-Wagner _Follow

"The Federal Constitutional Court’s decision underscores that searches of private homes in money‑laundering probes require more than unexplained financial activity; they demand concrete factual indications linking the funds to a catalogue predicate offence under § 261(1) StGB. This protects the heightened constitutional privacy interest in the home by preventing intrusive measures based on mere suspicion or regulatory‑level reporting standards.

Practically, investigators must gather and present specific, articulable leads tying transactions to particular predicate crimes before seeking a search warrant, while defence counsel can reliably challenge searches that rest on speculative inferences. The ruling narrows the circumstances in which a home search is permissible and reinforces procedural safeguards in financial‑crime investigations."

Application to the case facts

Applying those principles, the Court found that although the pattern of deposits, transfers abroad and withdrawals was atypical relative to the complainant’s declared income and raised legitimate suspicions that the funds were not from lawful sources, the record lacked specific indicia that the funds derived from a catalogue predicate under § 261(1) sentence 2 StGB. The investigative materials and the courts’ reasoning did not explain why any particular catalogue offence was plausibly implicated. The only concrete predicate suspicion articulated after the search pointed toward the employer’s possible wage‑related offences under § 266a StGB, which — at least in the form under consideration — does not fall within the § 261(1) catalogue in the relevant way. The lower courts therefore applied an insufficient standard and underestimated the weight of Article 13(1) protection.

Consequences and remedy

The Constitutional Court declared that the challenged decisions — specifically the initial search order of 9 September 2013 and the later decision upholding dismissal of the complainant’s remedies — violated Article 13(1) GG. The ruling set aside the appellate decision insofar as it dismissed the complainant’s challenge to the search and remanded the case to the regional court to decide only on costs of the remedy proceedings. The Court did not annul the executed search order itself because the measure had already been carried out and the seized items had been destroyed with the complainant’s consent and the criminal investigation was later discontinued.

Practical implications for enforcement and defence

The decision draws a clear line for prosecutors, judges and defence counsel handling money‑laundering investigations that contemplate residential searches. For law enforcement and prosecutors, the ruling requires that applications for search warrants in suspected money‑laundering cases set out factual indications not only of a laundering act but also specific, articulable reasons to believe that the funds originated from one or more of the predicate offences enumerated in § 261(1) sentence 2 StGB. Mere anomalous account activity, unexplained cash receipts or transfers abroad may justify further inquiries and reporting under the GwG, but they will not alone suffice to authorize a home search. Investigators must therefore develop and document factual leads that tie the suspect funds to particular predicate categories if they hope to obtain intrusive judicial measures.

For defence practitioners, the ruling reaffirms grounds to challenge search orders that rest on inferences without concrete predicate indicators. Requests for judicial review of search authorizations should press the double‑suspicion requirement: demand specification of the particular catalogue predicate, show how the prosecutor’s factual reasoning falls short of non‑speculative indicia, and insist on the heightened protection that home searches require.

Conclusion

BVerfG 2 BvR 2992/14 sharpens constitutional guardrails around searches in money‑laundering investigations. It balances the public interest in investigating serious financial crime against the fundamental protection of the home by insisting on a concrete, twofold initial suspicion. The ruling limits the automatic transposition of lower regulatory reporting standards into the criminal procedural sphere and obliges investigators and courts to articulate why an account’s unusual activity plausibly points to a catalogue predicate before allowing the most intrusive evidence‑gathering steps.

Dive deeper

• BVerfG ¦ Case 2 BvR 2992/14 ¦ Link