영장에 의하지 아니하는 강제처분의 특수문제로써 스마트폰에 저장된 정보에 대한 수색 - Riley v. California 판결 평석 -

Abstract

The Fourth Amendment provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”. As to the interpretation of the law, the Supreme Court of the United States determined that where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ‘reasonableness’ generally requires the obtaining of a judicial warrant, and that in the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. In 1914, the Supreme Court first acknowledged the right of the Government to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime, and since that time, it has been well accepted that such a search constitutes an exception to the warrant requirement. This is the so called ‘search incident to arrest’ exception. However, one can argue that modern “smart phones,” a cell phone with a broad range of other functions based on advanced computing capability, largestorage capacity, and Internet connectivity, is distinguishable from a search of any other materials on an arrestee’s body, and gaining access to them is fundamentally different from rifling through someone’s pockets or purse. The case before us, Riley v. California, 573 U.S. ___ (2014), is a landmark United States Supreme Court case in which the Court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional, acknowledg- ing an exception to the exception of ‘search incident to arrest’. The case includes critical issues regarding the privacy rights of the arrestee and the reasonableness of a warrantless search incident to a lawful arrest, and is very much worth exploring.