마약류관리에관한법률위반(향정)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
However, the above punishment for a period of two years from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. The lower court rendered a judgment of conviction against the Defendant by misunderstanding the legal doctrine by putting the Defendant’s confession, seizure protocol, seizure list, and narcotics appraisal report as evidence.
However, among the above evidence that the court below found guilty, since all illegally collected evidence for the following reasons are inadmissible, it cannot be used as evidence of guilt.
Therefore, the lower court, which found the Defendant guilty of the facts charged of this case without any evidence of reinforcement of the Defendant’s confession, erred by misapprehending the legal doctrine, thereby affecting the conclusion
When the investigative agency searches the dwelling of a criminal defendant without a warrant issued by a judge, it shall obtain the consent of the criminal defendant.
Nevertheless, the police officer searched the defendant's residence without the warrant or the consent of the defendant, found evidence, such as phiphones, and then arrested the defendant as an urgent suspect at the scene of the possession of phiphones, and seized the above evidence.
Therefore, the search of the defendant's residence and the urgent arrest based on it are all illegal, and the evidence obtained based on it is also illegal.
B. The sentence sentenced by the lower court (eight months of imprisonment, two years of suspended execution, and confiscation) is too unreasonable.
2. Determination
A. In order to guarantee the fundamental human rights of evidence acquired during the search without a warrant, due process regarding the search and seizure, and the Constitution declaring the basis of warrant requirement and subsequent thereto, the normative power of the Criminal Procedure Act, which provides specific standards for the search and seizure procedures, shall be firmly maintained so as to realize the establishment of substantial truth and the protection of the rights of individuals in harmony (see, e.g., Supreme Court Decisions 2007Do3061, Nov. 15, 2007; 2008Do11437, Mar. 12, 2009). A search based on the suspect’s consent without a warrant is also conducted.