마약류관리에관한법률위반(대마)
1. The part of the judgment of the court below against Defendant A is reversed.
Defendant
A shall be punished by imprisonment for three years.
, however, the defendant.
1. Summary of grounds for appeal;
A. On July 24, 2017, an investigative agency (Defendant E) searched the Defendant’s residence while urgently arresting the Defendant, and during that process, seized the Defendant’s personal mobile phone (AV; hereinafter “instant mobile phone”) and AVs.
Therefore, the above search is irrelevant to the grounds for emergency arrest against the defendant. The evidence necessary to prove the crimes of marijuana, such as the confession, smuggling, and customs information, cannot be recognized as urgent and complementary. From the stage of seizure, the search was conducted by infringing the defendant's right to refuse to make statements from the stage of seizure.
B. A criminal investigation agency did not conduct a separate search and seizure procedure regarding the instant mobile phone and ASEAN digital information, and there is no circumstance to support the existence of an exceptional circumstance to seize the information storage media itself at the stage of requesting a search and seizure warrant (hereinafter “ex post facto warrant”).
2) There was no fact that the Defendant voluntarily released the instant mobile phone and the arche, and allowed the investigative agency to view the information stored in the said device.
Rather, since the investigative agency obtained the password of the cell phone of this case without the notification of the right to refuse to make statements, electronic information obtained thereby is inadmissible as evidence of illegal collection.
3) Although the instant mobile phone and Amateur’s digital information are limited to the facts charged for the sale and cultivation of marijuana, which are unrelated to the offense of smuggling, the investigation agency seizes them. This constitutes an unlawful seizure and thus, the said digital information cannot be used as evidence (in spite of the issuance of the instant ex post facto warrant, the facts suspected of being suspected are only the offense of smuggling, smoking, and possession, but not the offense of selling and cultivating marijuana). In addition, digital information and marijuana may be carried out ex post facto.