In a case where police officers informed of the Defendant’s medication without a warrant, and discovered the Defendant’s locking device at the Defendant’s residence without a warrant, and thereafter arrested the Defendant, and subsequently were prosecuted for violating the Act on the Control of Narcotics, Etc. on the ground that the Defendant administered Meptamins even if the Defendant was not a person handling narcotics, the case holding that the Defendant’s confession was illegal, and that the Defendant’s confession cannot be used as evidence of guilt on the ground that there was no evidence to reinforce the confession, and thus, the confession cannot be used as evidence of guilt.

In a case where police officers informed of the Defendant’s medication without a warrant and discovered the Defendant’s locking device at the Defendant’s residence without a warrant, and arrested the Defendant at the end of search, and thereafter arrested the Defendant, and then the Defendant was prosecuted for violating the Act on the Control of Narcotics, Etc. on the ground that the Defendant administered the Mepta, even though he is not a person handling narcotics, the case holding that the Defendant was acquitted on the ground that the Defendant’s confession cannot be used as evidence for conviction on the ground that, in light of all the circumstances including the abstract information alone, it is difficult to deem that there was considerable reason to suspect that the Defendant administered the narcotics, on the sole basis of the abstract information, it is unlawful to recognize the reasonableness and urgency of the charge, and that the Defendant continued voluntarily confession of the same contents after the lapse of a considerable period of time without an illegal emergency arrest, in view of the fact that the Defendant’s confession was admitted as admissible, but

Article 2 subparag. 3 (b), Article 4(1)1, Article 60(1)2 of the Narcotics Control Act, Article 200-3(1), Article 217, Article 308-2, and Article 325 of the Criminal Procedure Act

Defendant

Defendant

Kim Jong-sik et al.

Public-service Advocates

Changwon District Court Decision 2015Dadan2099 decided December 16, 2015

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment shall be published.

1. Summary of grounds for appeal;

The emergency arrest against the defendant is illegal arrest that does not meet the requirements of emergency arrest, and since the investigation agency requested urology while illegally arrested the defendant and both the urine and the evidence derived therefrom are illegally collected evidence, the judgment of the court below which found the defendant guilty is erroneous in the misapprehension of legal principles, even though the confession of the defendant is the only evidence for the facts charged in this case, and there is no evidence to reinforce it.

2. Summary of the facts charged in this case

On September 24, 2014, the Defendant was sentenced to one year to imprisonment for a violation of the Act on the Control of Narcotics, etc., in Changwon District Court Msan branch on September 24, 2014, and completed the execution of the sentence in the Common Detention House on April 30, 2015.

At around 19:00 on July 14, 2015, the Defendant, even if not a person handling narcotics, put approximately 0.03 g of psychotropic drugs, into a single-use injection machine, and administered them in a way of injection into the left arms at the home of the Defendant at Changwon-si, Changwon-si ( Address omitted), 0.03g of ○○ Man Manym (Dong, lake omitted), a psychotropic drug, and then in a way of injection into the left arms.

3. The judgment of the court below

A. The lower court acknowledged the following relevant facts based on the evidence of employment.

1) On July 15, 2015, the police officer investigation at the Jinhae Police Station and the police officer affiliated with the Jinhae Police Station informed the informant to the effect that “A person who habitually imprisoned narcotics was released from the facility at his house even if the person was not released from the facility.”

2) After receiving the above information, the police officer confirmed that the Defendant was the same person by transmitting the images to the informant by sealing the pictures from the human storage place after immediately moving the Defendant’s residence to the vicinity of the Defendant’s residence.

3) The police officer revealed that he was a police officer by making a cell phone phone phone of the defendant and talked with him (referred to as the "police officer" without disclosing that he was a police officer). However, the police officer made a false statement to the effect that he was in a remote place without disclosing that he was a police officer. Since then, the police officer called again, but the defendant did not receive a phone.

4) The police officer sent a door to the Defendant’s residence, but the Defendant did not open a door without any person or body while hiding his house under the inside of his house.

5) The police officer set up a door by releasing the locking device, entering the Defendant’s residence, and found the Defendant, at the end of the search of the Defendant’s residence, was found to have been hidden under the part of the Defendant, and the Defendant led to the confession that he administered the scopon, and confirmed the scopon on the left side of the Defendant.

6) Police officers informed the Defendant of the Non-Disturbion doctrine, and arrested the Defendant.

7) In the state of emergency arrest, the Defendant consented to the recovery of urines, and the Defendant’s urphone training reaction was conducted on the part of the Defendant.

B. Based on the above facts, the court below found that there was no time to obtain arrest warrant in light of the following: (i) the defendant was informed that he administered narcotics within his residence and the defendant made a false statement about his whereabouts to a police officer; (ii) the defendant was trying to avoid the investigation of a police officer; (iii) the defendant was guilty of the charge of this case on the ground that there was no time to obtain arrest warrant in light of the fact that there was sufficient motive or possibility for the defendant to escape; and (iv) the risk of extinction of evidence in the defendant's body has frightened after the lapse of the time; and (v) the police officer's act of releasing the locking device of the defendant's residence and entering his residence does not go against the warrant principle or the relevant provisions of the Criminal Procedure Act by incidental disposition for the search of the suspect; and thus, (v) the emergency arrest against the defendant was lawful based on the evidence in its holding.

4. Judgment of the court below

A. Determination on the legality of emergency arrest

Inasmuch as the emergency arrest is an exception to the warrant principle, it is exceptionally permitted only when the requirements of Article 200-3(1) of the Criminal Procedure Act are met. Emergency arrest without legal basis constitutes illegal arrest. Here, whether the requirements of emergency arrest are met or not should be determined based on the situation at the time of arrest rather than on the circumstances revealed ex post facto. In addition, if a prosecutor or a judicial police officer’s judgment on the fulfillment of the requirements is considerably unreasonable in light of empirical rule in light of the situation at the time of emergency arrest, the arrest is illegal arrest (see Supreme Court Decision 2000Do5701, Jun. 11, 2002).

In light of these legal principles, in full view of the following circumstances acknowledged by the facts and records as seen earlier, the emergency arrest against the accused is illegal because it is difficult to recognize the reasonableness and urgency of the charge and it is difficult to satisfy the requirements of emergency arrest.

1) If the police officer’s act of removing the locking device of the defendant’s residence without a warrant and entering the place of residence does not constitute an incidental disposition for emergency arrest, such intrusion itself is unlawful without any legal basis, and such continuous emergency arrest is also illegal regardless of its formal legality. On the contrary, if the police officer’s act of removing the locking device of the defendant’s residence and entering the place is viewed as an incidental disposition for emergency arrest, such act shall be deemed to have commenced as an incidental disposition for emergency arrest, which constitutes a series of processes, “the situation at the time of arrest” is not “the specific moment or time when the police officer arrests the defendant,” but rather, rather than “the situation at the time of arrest” a series of overall processes focusing on the situation at the time when the police officer forced the defendant to enter the place of residence of the defendant, and obtained confession by the defendant, and thus, it is reasonable to permit the police officer to search and seize the defendant at the time of arrest or detention without any specific warrant or evidence obtained from the judge at the time when arrest was conducted after securing the confession of the defendant.

2) According to the statement by the non-indicted witness of the court below, the police officer who has arrested the defendant, the contents of the defendant's information on the defendant are as follows: "A person who has habitually taken narcotics into custody and has taken out narcotics at his own house, and again administered narcotics at his own house." According to the statement of emergency arrest against the defendant, the content of the information is as follows: "The person who was detained before and after his own phone, administered another penphone, and was released from the early police officer at his own house," and it is hard to see that there is a considerable reason to suspect that the defendant was administered narcotics. Further, it is hard to view that there is a considerable reason to suspect that the defendant was administered narcotics only by finding the residence of the defendant of the defendant of the first instance, and demanding the police officer to clarify that he was a police officer because he was trying to attract the defendant, and that the defendant's act, who committed a false act with respect to his location, did not have any ground to suspect that the defendant did not have done any act.

3) According to the statement of the non-indicted witness of the court below, since police officers visited the defendant's residence to check in advance the accuracy of the information, such as whether the defendant was living in the actual reported residence, etc., and then to investigate the informant, the finding of the defendant at this point is merely the situation originally planned by the police officers, but it cannot be deemed that the defendant should be immediately arrested by breaking the defendant. In addition, since it is judged that the police officers who confirmed the fact that the defendant was reported from the informant by sealing the photo from the human custody, and the police officers who discovered the defendant's telephone number, residence, etc. were able to obtain an arrest warrant by preparing explanatory materials by investigating the informant as originally planned, etc., so it is difficult to recognize urgency as there is no special circumstance to deem that the police officers had no time to receive the warrant.

B. Determination of admissibility of evidence collected based on illegal emergency arrest

1) Relevant legal principles

Article 308-2 of the Criminal Procedure Act provides, “Any evidence collected in breach of the due process shall not be admitted as evidence.” Accordingly, not only the evidence collected by the investigative agency in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act, but also the secondary evidence obtained based on the evidence of conviction shall not be admitted as evidence for conviction. However, when the court finally determines whether to admit the admissibility of the secondary evidence, it should first consider all circumstances related to the collection of the primary evidence that did not follow the procedure, as well as all circumstances that occurred in the process of collecting the primary evidence based on the primary evidence, mainly on the dilution or simplification of causation, depending on specific cases (see Supreme Court Decision 2009Do526, Apr. 23, 2009, etc.).

2) Probative value of on-site photographs

On-site photographs are inadmissible because police officers collected evidence at the time of illegally emergency arrest of the defendant.

(iii) 6 copies, including photographs, of the results of ACC’s examination, as well as the admissibility of circulars.

Even if an emergency arrest warrant was taken on July 15, 2015 at least 15:55, there is only a statement of consent from the defendant to be taken on the record, and the record of seizure or list of seized articles is not prepared. ① If it is deemed that an emergency arrest officer seizes an article owned, possessed, or kept by the person under emergency arrest pursuant to Article 217(1) of the Criminal Procedure Act, as argued by the counsel at the court below, the defendant’s defense is unlawful in violation of Article 217(2) and (3) of the Criminal Procedure Act, since it was not immediately returned without the request for a subsequent seizure warrant, and thus, the defendant’s defense cannot be seen as being found to have been lawfully collected in violation of the provision of Article 217(2) and (4) of the Criminal Procedure Act (see Supreme Court Decision 2009Do11401, Dec. 24, 2009). It is not reasonable to acknowledge the defendant’s consent to be taken on the basis of evidence collected from the prosecutor’s ex officio and evidence.

C. Determination as to the existence of the supporting evidence of confession

In light of the fact that the defendant confessions the facts charged in the instant case and voluntarily made a confession of the same content in spite of the lapse of a considerable time beyond the illegal emergency arrest, admissibility is recognized in the confession of the defendant. However, unless the evidence is illegally collected and inadmissible as evidence, there is no evidence to reinforce the confession (i.e., the protocol of interrogation of the defendant in the process of preparation by the public prosecutor, and the statement of the non-indicted witness in the lower court that the defendant was aware of the fact of administering narcotics at the time of emergency arrest does not have independent value of evidence independent from the confession, and thus, it cannot be a supporting evidence. The court statement of the non-indicted witness in the lower court as to the defendant's movement at the time of emergency arrest is insufficient to serve as a supporting evidence for the defendant's Phphone medication.) The confession of the defendant falls

D. Sub-determination

Therefore, even though the facts charged in this case constitute a case where there is no proof of crime and should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, the court below erred in the misapprehension of legal principles, and the defendant's assertion pointing this out

5. Conclusion

Therefore, the appeal by the defendant is justified, and the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The facts charged against the defendant are as stated in Paragraph (2) above, and since this constitutes a case where there is no proof of crime as stated in Paragraph (4) above, it constitutes a case where there is no proof of crime, it is so decided as per Disposition by the latter part of Article 325 of the Criminal Procedure Act, and by publicly announcing the summary of judgment under Article 58 (2)

Judges Cho Sung-hoon (Presiding Judge) Constitution of Dang-hun (Presiding Judge)