Evidence obtained by unlawful methods cannot be used as the basis of a judgment (Constitution art. 38(6), Code of Criminal Procedure (CMK) art. 217(2)). The most common unlawfulness in drug cases is a search carried out on the basis of a preventive search order (önleme araması kararı) instead of a judicial search order, even though there was a concrete tip-off about, or surveillance of, a specific person. In such cases the Court of Cassation (Yargıtay) does not treat the drugs seized as evidence. If there is no other evidence, the defendant must be acquitted.
The difference between a preventive search and a judicial search
| Preventive search | Judicial search (adli arama) | |
|---|---|---|
| Purpose | To prevent offences or danger in general | To find the perpetrators of, and evidence for, a specific offence |
| Who | People in general who are not under suspicion of an offence (e.g. a road check) | A person against whom there is a concrete suspicion of an offence |
| Legal basis | Police Powers Law (PVSK) art. 9 | CMK art. 116 et seq. |
| Order | Order of a judge; where delay would be prejudicial, written order of the district governor or governor (mülki amir) | Order of a judge; where delay would be prejudicial, written order of the public prosecutor |
The rule: If the police know in advance the name of the person to be searched, the plate number of their car, or where they will take the drugs, there is already a concrete suspicion. In that case a judicial search order or a written order of the prosecutor must be obtained. A search based on a preventive search order is unlawful.
The in-the-act exception
If a person is caught in the act (suçüstü), no separate order is needed for the search (CMK art. 2(1)(j), PVSK additional art. 6). For example, if the police see with their own eyes a person whose description they were given making an exchange with someone else and intervene immediately, the drugs seized in that search may be considered lawful evidence.
By contrast, stopping and searching a person who has been followed for weeks under an interception of communications order, based on what was heard in the interception, is not “caught in the act”. In that case the prosecutor must be informed and a judicial search order obtained.
What should the defence look at?
- Type of search order: Is there a judicial search order or a written order in the file, or only a preventive search order?
- Information before the search: Do the tip-off report, intelligence note or physical surveillance report show that there was a concrete suspicion before the search?
- Scope of the order: Does the order cover the person, place, time and items to be searched?
- Phone examination: Was the content of the phone examined under a judge’s order?
- Blood and urine sample: Was the sample taken under a judge’s order, or with a judge’s approval within the time limit? (Our article on drug tests)
- Interception of communications: Was the order given for one of the catalogue offences in the law (CMK art. 135) and within the time limit?
What happens if the evidence is excluded as unlawful?
- Drugs seized in an unlawful search, and the reports based on that search, cannot be used as the basis of a judgment.
- The court looks at the remaining evidence: witness statements, lawful interception records, a confession and so on.
- If there is no other evidence sufficient for a conviction, the defendant is acquitted.
- If the quantity seized is within the personal-use range and the defendant themselves said that they would give the drugs to someone else, a reduction for effective repentance under Turkish Criminal Code (TCK) art. 192(3) may come into play, because they helped reveal the nature of their own offence.
Recent Court of Cassation decisions
- Court of Cassation Assembly of Criminal Chambers, 07.01.2026, E. 2023/509, K. 2026/8: A defendant in a taxi stopped at a checkpoint, without any search order or warrant, handed over the drugs in his pocket himself during a pat-down; this handover was found lawful. However, the subsequent search of a cloth bag in the car without an order or warrant was held to be a judicial search, and the 405 grams found in the bag were excluded from the judgment as unlawfully obtained evidence. Because of the variety of the remaining drugs and the other evidence, the act was still held to be trafficking. Decision text
- Court of Cassation 10th Criminal Chamber, 05.03.2026, E. 2021/9148, K. 2026/2767: A person followed under an interception order and stopped on the road based on what was heard in the interception had been searched “on the basis of a preventive search order”. There was no in-the-act situation; a judicial search order was required. The evidence was held to be prohibited evidence; the conviction was reversed, the Chamber noting that an acquittal was required as there was no other evidence. Decision text
- Court of Cassation 10th Criminal Chamber, 01.04.2026, E. 2020/11654, K. 2026/3869: A car whose plate number and destination had been learned through interception was stopped and searched under a preventive search order. The Chamber held that where there is a concrete suspicion, a judicial search order or written order is required and that, without one, the drugs seized cannot be used as the basis of a judgment; the judgment was reversed for incomplete investigation. Decision text
- Court of Cassation 10th Criminal Chamber, 16.12.2025, E. 2025/6442, K. 2025/13560: There was information that the defendant would bring drugs in a car whose plate number had been reported, but the file contained no judicial search order or written order. Giving judgment without investigating this was held to be an incomplete investigation and the judgment was reversed. Decision text
- Court of Cassation 10th Criminal Chamber, 15.12.2025, E. 2021/3901, K. 2025/13537 (counter-example): During an operation following a tip-off, the defendant was seen making an exchange with two people and was searched immediately. This was held to be “caught in the act” and the search was found lawful. The acquittal was reversed on the prosecutor’s appeal. Decision text
This article is for general information only and is not legal advice. For your specific situation, please seek advice from a lawyer.