1. As to the Prosecutor’s Grounds of Appeal

A. Article 215(1) of the Criminal Procedure Act provides, “If necessary for criminal investigation, a prosecutor may seize, search, or inspect evidence according to a warrant issued by a judge of the competent district court, only when there is a circumstance to suspect that a criminal suspect committed a crime and it is deemed that such crime is related to the pertinent case.” Therefore, in cases where separate evidence irrelevant to the facts suspected of a crime, which was the ground for issuing a warrant, is seized, this cannot be used as evidence of conviction.

However, the result of seizure and search can be used as evidence of guilt in the case of a crime subject to seizure and search or a crime related thereto (see Supreme Court Decision 2013Do11233, Mar. 10, 2016, etc.).

The term “crimes related to the suspected criminal facts” as stated in the search and seizure warrant means the crimes in objective relevance between a person subject to the search and seizure warrant and a criminal suspect. Of note, the objective relevance to the suspected criminal facts may be acknowledged in cases where the facts themselves or basic facts thereof, as stated in the search and seizure warrant, are directly related to the same criminal act, and may be used as indirect evidence or circumstantial evidence to prove the motive and background of the crime, the means and method of the crime, the time and place of the crime, etc. In full view of the details of the suspected criminal facts stated in the search and seizure warrant, the subject of the investigation, the investigation circumstances, etc., the relevance ought to be recognized only in cases where specific and individual relations exist with the criminal facts as stated in the search and seizure warrant, and is not simply related to the same or similar criminal facts.

In addition, the personal relationship between the suspect and the joint principal offender stated in the search and seizure warrant.

B. A prosecuted case against an accomplice or an indirect criminal, as well as a necessary accomplice may also be recognized (see Supreme Court Decisions 2016Do13489, Jan. 25, 2017; 2017Do13458, Dec. 5, 2017, etc.).

B. For the following reasons, the lower court determined that the drug appraisal report, based on the search and seizure warrant (hereinafter “instant search and seizure warrant”) dated May 29, 2018, stating the result of the investigation of narcotics against the Defendant’s urinals and urinals, which was seized, constitutes an illegally collected evidence or secondary evidence obtained based on the same, and thus, inadmissible.

1) On May 23, 2018, the Defendant’s room suspected of medication of campopopopopopopopopopopopopopopopopopopopopopopopopopopopopopopopopopopopopopicopopopopopopopopopicopopopopopopopopopic from around June 21, 2018 to the 25th day of the same month.

2) The crime of medication with narcotics shall be deemed a separate crime in the event that the date of the crime is different. The facts charged as stated in the warrant of seizure of this case and the facts charged do not reveal any objective relevance since the place, method, and dose of the crime are not specified in detail.

The facts charged in the seizure warrant of this case and the facts charged in this part are the same crimes cannot be viewed as having objective relevance solely on the sole basis of the facts charged.

3) Based on the informant’s statement, the police specified the facts charged as stated in the instant search warrant. After the issuance of the instant search warrant, the Defendant’s defense was seized by executing the instant search warrant on June 25, 2018, and the period for which narcotics, etc. can be detected from the urphone’s urine’s urine. In that case, the police indicted the Defendant as stated in this part of the facts charged on the ground that the Defendant’s urphone’s urine was not detected from the Defendant’s urine’s urine seized with a separate search and seizure warrant. In full view of the contents of the facts charged as indicated in the instant search warrant, the subject of the investigation, investigation circumstances, etc., the fact of the phiphone medication, such as this part of the facts charged, was deemed to have been a fact entirely foreseeable at the time of issuance of the instant search warrant, and thus, it is difficult to view that there was a relationship between the facts charged as stated in the instant search warrant and seizure warrant and the facts charged.

C. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the “ objective relevance” of the search and seizure warrant.

2. On the grounds of appeal by the Defendant, the lower court convicted the Defendant of violating the Act on the Control of Narcotics, etc. by Handphones, among the facts charged in the instant case, on the grounds indicated in its reasoning. Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not exhaust all necessary deliberations, and did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the modification of indictments

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-in

Justices Min You-sook of the District Court

Justices Lee Jae-hwan