영장주의 예외인 형사소송법 제216조 제1항 제2호의 적용 요건과 효과

Abstract

Although a prior warrant is required for seizure and search by investigative agencies (Article 215 of the Criminal Prosecution Act) in principle, search for seizure without warrants is permitted in exceptional cases in view of urgency, etc. (Articles 216 to 218). In particular, a warrantless search for confiscation will not be unduly expanded on the basis that Article 216(1)(ii) (confiscation search and verification at the site of arrest) should be acknowledged only when it is urgent. Furthermore, under the legal requirements of Article 216(1)(ii), a search with an arrest warrant may be conducted at “the site of arrest” at “the arrest or when needed for confinement”, wherein arrest or confinement refers to “lawful” arrest or confinement, and relevance is required in addition to urgency. Moreover, since this is limited to “the site of arrest”, it would be necessary to have temporal closeness under the premise that there is a close connection between the arrest and the seizure search and verification. In such case, an arrest can only be based on an act at least adjacent to an arrest from the view of the arrester, and the arrested, in principle, refers to a person on site, but it would be proper to interpret that seizure and search is permitted even if the suspect has fled the site after the arrest has begun. In order to eliminate unnecessary dispute in this regard, it would be advisable to establish a proviso in Article 216(1)(ii) and revise a request for a post-warrant within 48 hours from the “time of seizure.” Meanwhile, insofar as the basis of admitting a warrantless seizure search and verification at the site of the arrest lies in the urgency of act, it would be logical to interpret the scope of the place as the place of the arrest, and the goods and bodies at the site. However, if the site of the arrest is changed due to a temporary fleeing during or after the arrest or the police station to which the arrestee has been taken is changed due to unforeseen road conditions or the suspect’s resistance, the changed site can be seen as the site of the arrest. With regard to the physical scope, the subject of seizure and search must be limited to the evidence of the crime and the means of fleeing, or other weapons under the possession of the suspect. In this regard, the seizure of arbitrary submissions by the holder or a person arrested at the site of the arrest is possible (Article 218), but needs strict determination since this can be exploited as a means to circumvent the warrant requirement. There are many disputes particularly regarding mobile phones, arguing that the entire process, such as the search, duplication and printing of information stored on a mobile phone that are deemed to be related to the suspected case, may be considered as part of the seizure search and verification. In addition, the restoration (recovery) and analysis of deleted data are also collateral means and, thus, must be considered lawfully done even if the said recovery and analysis is performed without a warrant. Of course, if it is necessary to continue seizure of goods that have been seized at the site of the arrest, the prosecutor or police officer must request a seizure and search warrant without delay (within 48 hours of the arrest). Furthermore, failure to meet the requirements of a warrantless seizure at the site of the arrest constitutes an illegal seizure, and thus cannot be used as evidence of guilt, and even if a “consent to voluntary submission of seizures” is obtained from the accused immediately after the illegal confiscation, it would still constitute an illegal seizure unless extenuating circumstances emerge. The problem emerges when the illegally confiscated goods are returned and confiscated again in a form of immediate arbitrary submission. In such case, it is unlikely that the causal relationship between illegal seizure and voluntary submission will be seen as severed unless there are special circumstances to consider that the effects of illegal confiscation are not completely excluded and the freedom of decision-making of the submitter is guaranteed.