Switch from Preliminary Investigation to Flagrancy Investigation

Extract

[...] However, this solution is rejected when the conditions of the flagrancy investigation are met, even though the minutes did not specify this prior shift before the coercive act. II. The possibility of automatically switching from a preliminary investigation to a flagrancy investigation The High Jurisdiction holds that there is automatic shift in case of apparent indices (A.). It also recognizes a power of deduction in favor of the judge (B.). A. An automatic shift in case of apparent indices According to the studied judgment, as soon as apparent indices of an ongoing offense are discovered, the investigation shifts to a flagrancy investigation, without any particular condition. [...]

[...] An absence of coercive powers in preliminary investigation The High Jurisdiction recalls that without having modified the legal framework of the investigations, it would not have been possible to proceed with the search of the suitcase without the express consent of the interested parties. This is explained by the fact that the preliminary investigation does not grant any coercive power to the judicial police officers. In fact, nothing shows that a crime is being committed or has just been committed. Therefore, there is no need to rush to search for evidence that may soon disappear. [...]

[...] 11-81.125 - Is it possible to switch from a preliminary investigation to an investigation in flagrante delicto after an anonymous denunciation corroborated by other apparent evidence? Comment on the judgment Cass. Crim October 2011, no. 11-81.125 The judgment rendered on 5 October 2011 by the criminal chamber of the Court of Cassation is about the validity of procedural acts after a switch from a preliminary investigation to an investigation in flagrante delicto. In this case, after a confidential report informing of the existence of a cocaine trafficking operation, the police opened a preliminary investigation on 26 April 2010 against Mr. [...]

[...] This position may seem natural, because, even if it is not explicitly present in the police report, the apparent indices are objectively there. So it is logical that the judge can deduce it from the facts. However, subsequent jurisprudence will not confirm this position. In fact, a judgment rendered on January by the Criminal Chamber of the Court of Cassation (n° 19-83.774) indicates that judges cannot substitute their own deductions for the findings of the judicial police officers. [...]

[...] It was only after the opening that they would have acted within the framework of the investigation in flagrante delicto. The Court of Cassation is faced with the following problem: is it possible to switch from a preliminary investigation to an investigation in flagrante delicto after an anonymous denunciation corroborated by other apparent indices? The High Court holds that if, within the framework of a preliminary investigation, judicial police officers discover apparent indices making the commission of an offense probable, they may use the powers reserved to the investigation in flagrante delicto, namely the search without the consent of the interested parties. [...]