It is common to read on various news portals that a control of the security forces seized a sum of money found in a vehicle and that a criminal case was initiated for alleged money laundering. This is not necessarily related to organized crime, but often involves an ordinary citizen.
An example is a recent case of the Federal Justice of the interior, in which the employee of a company was investigated for transferring $3,000,000 in his work vehicle. As a preliminary evidentiary measure, the Court ordered the lifting of fiscal and banking secrecy, and the preparation of a report on the customs of the accused (intelligence activities). In turn, the prosecutor’s office ruled in favor of the nullity of the police procedure and requested the return of the money. This determined the nullity since the procedure was considered unfounded and therefore illegitimate.
This action is repeated in other similar cases. Based on this, we pose two questions: 1) in which cases do the security forces have powers to stop people circulating and requisition their vehicle and/or their belongings?; and 2) does the transfer of cash presume the commission of a crime?
In the first place, regarding the powers to stop people circulating and requisition the vehicle and/or belongings, we will say that, as a rule, the police authority cannot invade the sphere of privacy of any citizen without the well-founded authorization of a judge (arts. 14, 18 and 19 of the Magna Carta). In practice, this criterion is not always respected, so we seek to disseminate useful information on the limits of police powers and the crime of money laundering.
The only exception that would allow the security forces to inspect without a warrant are those cases described in article 230 bis CPPN, which requires:
- the concurrence of previous or concomitant circumstances that reasonably and objectively justify the inspection.
- May it be on public roads or in places of public access.
On the other hand, the last paragraph of the article contemplates the case of a public prevention operation in which officials may proceed to inspect vehicles, for example, on national routes.
This investigation is limited to vehicle inspection, such as the opening of the trunk door and the control of the documentation required to circulate. However, to inspect personal effects (bags, suitcases, backpacks, etc.), without a judge’s order, evidence of the commission of a crime must be shown. Otherwise, the procedure becomes illegitimate.
When we speak of “indications of committing a crime” we are referring to the existence of an objective suspicion, data, indication or externalized sign of a criminal event, that is, the decision to inspect cannot emanate from police subjectivism or intuition. Yes, the irregularity of the documentation of the shooting are indicators of suspicion, the state of excessive nervousness has also been considered, although we consider that it is difficult to substantiate and gives rise to doubt, or a demonstrable evasive behavior, among others.
In general terms, a legitimate routine control:
- You can control the documentation of the shot
- Although it is not usual, they can also go to a can or other narcotics detector.
- You can ask the driver to open the doors, including the trunk.
If there is no resistance or reluctance against the preventers and the vehicle’s documentation is in order, the police procedure cannot continue without a court order. It cannot exceed mere visual inspection.
It is important to remember that the transfer of cash does not imply the presumption of committing any crime: this conduct is not prohibited. On the contrary, it is protected by the National Constitution, and derives from the guarantee of reserve, freedom of movement and right to property (articles 14 and 19 of the CN). Even jurisprudence has recognized this.
Therefore, in case of being required by the authority in the framework of a preventive control to display personal belongings, the citizen has the right to refuse to do so and must be informed by the police about this power. In turn, the consent given by the citizen who was not duly informed of his right to refuse does not legitimize the search of personal effects.
The truth is that the security forces cannot walk down public roads requesting wallets or emptying pockets to find out how much money each citizen has, let alone request explanations of its origin.
Emilio Cornejo is a lawyer, Partner in charge of the Legal Department of Estudio Lisicki, Litvin y Asociados. Juliet Martin thatLawyer from the Department of Economic Criminal Law and Compliance of the same firm.
by Emilio Cornejo Costas and Julieta Martín Pantano
