적법한 체포에 부수한 휴대폰의 수색과 영장주의 - 미연방대법원의 판례를 중심으로 -

Abstract

Judging from the type and quantity of information stored on modern cell phones, a search of cell phone means that its owner suffers a significant intrusion on his private life. Considering this point, the U.S. Supreme Court's recent decision in Riley v. California declared it unreasonable to apply its prior precedent to the digital contents that allows searches of physical objects without a warrant incident to a lawful arrest. Namely, in a particular situation such as exigent circumstances, a warrantless search of suspect’s cell phone can be still justified, however, a law enforcement officer can not search the digital contents of suspect’s cell phone without a warrant for the sole reason that it was found on the suspect at the time of arrest. If so, barring exceptional circumstances, a warrant is essential to the search of suspect’s cell phone storing private text messages, e-mail, pictures, call log, and bank transactions etc., even incident to a lawful arrest. The Riley court’s reasoning is expected to provide a guideline both to the police and the judges who attempt to demarcate the scope of application of the doctrine of warrants. There remains a question that the courts have suitable structures in resolving the strained relations between the government’s interests of law enforcement and individual's privacy interests. There is a widespread belief that legislative bodies are better equipped entity to treat complex privacy protection problems because they are free from binding force of the precedents and can accept change wholeheartedly. The Constitution of the R.O.K. declares the doctrine of warrants in the provision of article 12 (3). It says that warrants issued by a judge through due procedures upon the request of a prosecutor shall be presented in case of arrest, detention, seizure or search, provided, that in a case where a criminal suspect is an apprehended flagrante delicto, or where there is danger that a person suspected of committing a crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may request an ex post facto warrant. We have a pending bill in National Assembly allowing the investigative authorities to collect the cell phone metadata of the persons who supply reasonable ground for a doubt of terrorists or sponsors of terrorism. This bill justifies that metadata of cell phone can be collected from innocent people with no limit of period. In this respect, we need to review the tension between the doctrine of warrants and the collection of metadata.