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Abstract

In the recent investigation environment, the importance of forensic evidence derived from digital devices such as smartphones, tablet PCs, and smart watches is increasing day by day. In particular, since smartphones are always carried in almost every process of daily life, countless information about overall personal life such as messages, location information, Internet search data, photos and videos, voice data, various memos, phone numbers, call history, payment history, etc. is implied, and there is a high probability that conclusive evidence will come out to prove a crime. In addition, mobile devices such as smartphones are often confiscated through warrant exceptions, such as seizure search at the arrest site and seizure search for 24 hours after emergency arrest, due to the characteristic that they are always carried and easily transported to a person’s body. If the smartphone is urgently seized under the exception of warrantism under the Criminal Procedure Act without receiving a prior seizure search warrant due to the convenience of the smartphone as described above, it is questionable to what stage the right to participate in the emergency seized smartphone should be guaranteed. In this regard, the Supreme Court precedent has not been clearly judged so far. However, in order to harmonize the secrecy and efficiency of the investigation for the discovery of truth and the compliance with the principle of due process for human rights protection, it is reasonable to interpret that it is only guaranteed to “selection work” that separates irrelevant information through keyword search. This is because the act of separating only related information and “exploring, copying, and outputting” it again, that is, analyzing selected electronic information, is tantamount to the internal seized material analysis process of the investigative agency.