유류물 압수에 대한 적법절차 원칙 적용의 필요성 - 대상판결 : 대법원 2024. 7. 25. 선고 2021도1181 판결 -

Abstract

Until now, discussions regarding the seizure of items left behind have primarily focused on whether the items were qualified as such, while procedural issues during the process of seizing these items have not been specifically examined. However, on July 25, 2024, the Supreme Court, in the case at issue, acknowledged the admissibility of a video obtained from an SSD card seized as an item left behind and interpreted that the restriction on warrant requirements did not apply to the seizure of items left behind according to Article 218 of the Criminal Procedure Act. The Supreme Court, citing the article, has explicitly stated that a warrant was not required for such seizures. It also presented, as one of the factual basis of its judgment, that, in the case of items left behind, it was impossible to presume the existence of a submitter. This marked the first ruling addressing procedural issues related to the seizure of items left behind, carrying significant importance as it may serve as a crucial legal standard applicable to similar cases in the future. However, currently, the focus of seizure and search by investigative authorities is largely concentrated on information storage devices. As science and technology continue to advance, it is only natural to anticipate the emergence of a media capable of storing vast amounts of personal information. We are in an era where it is no exaggeration to say that an entire individual’s life can be contained within a single storage device. In this context, the Supreme Court's ruling declaring that 'when items are seized as left behind, limitations on relevance and guarantees of the right to participation are not required' is inevitably disappointing. Of course, based on the facts of the case, it appears that there was a significant need to punish the defendant and that the evidence might have been necessary to uncover the substantive truth in that criminal procedure. However, despite such necessity, the ruling failed to adequately consider the current reality, where individuals were highly dependent on information storage devices in their daily lives, and the scope of information stored on these devices was enormous. It is hard to conclude that a storage device can be freely searched by the police because it may be classified as abandoned property. Moreover, the fact that the owner has intentionally thrown away the device may not be the justifiable reason to search every single information stored in it. We need to find a better solution that guarantees reasonable search under a certain practical guidance by the law enforcement personnel, and, at the same time, the principle of search warrant should be equally respected by the police in accessing the enormous information stored in a digital device.