The purport of Article 217(1) of the Criminal Procedure Act that provides for the urgent search, seizure, or verification of articles owned, possessed, or kept by the person subject to emergency arrest / Whether seizure, search, or verification under the above provision may be subject to articles owned, possessed, or kept by the person subject to emergency arrest in a place other than the place of arrest (affirmative)

When necessary for the investigation of crimes, a judicial police officer may seize, search or inspect evidence according to the warrant issued by a judge of the competent district court upon request by a public prosecutor who is requested by the judicial police officer only if there are circumstances likely to suspect that a suspect has committed an offense and is deemed related to the relevant case (Article 215(2) of the

As can be seen, the so-called principle of prior warrant that a warrant should be issued for search, seizure, or inspection for criminal investigation. However, Article 217 of the Criminal Procedure Act recognizes exceptions thereto. In other words, if it is necessary to urgently seize an article owned, possessed, or kept by the person arrested, a public prosecutor or a judicial police officer may seize, search, or inspect such article without a warrant within 24 hours from the time of arrest (Article 217(1) of the Criminal Procedure Act), and where it is necessary to continuously seize the seized article, a warrant of search and seizure shall be requested without delay. In such cases, the request for a warrant of search and seizure shall be made within 48 hours from the time of arrest (Article 217(2) of the same Act)

The purpose of Article 217(1) of the Criminal Procedure Act is to prevent related persons from destroying or concealing evidence and to ensure prompt securing of evidence related to criminal facts by notifying that an investigative agency was arrested a suspect in the event of emergency arrest to accomplices or related persons. Unlike Article 216(1)2 of the Criminal Procedure Act that provides for seizure, search or inspection at the site of arrest, search or inspection of evidence, the objects owned, possessed, or kept by the person arrested at a place other than the place of arrest can be subject to objects owned, possessed, or kept by the person arrested at a place other than the place of arrest.

Articles 215(2), 216(1)2, and 217(1) and (2) of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 2008Do2245 decided Jul. 10, 2008 (Gong2008Ha, 1206)

Defendant

Defendant

Attorney Kim Young-hoon

Seoul Central District Court Decision 2017No477 Decided June 22, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Deeming of legal principles as to rules of law to exclude illegally collected evidence

(a) Where necessary for the investigation of crimes, a judicial police officer may seize, search or inspect evidence according to the warrant issued by a judge of the competent district court upon a request of a public prosecutor who is requested by the judicial police officer, only when there are circumstances likely to suspect that a suspect has committed crimes and that it is relevant to the relevant case (Article 215(2) of

As can be seen, the so-called principle of prior warrant that a warrant should be issued for search, seizure, or inspection for criminal investigation. However, Article 217 of the Criminal Procedure Act recognizes exceptions thereto. In other words, if it is necessary to urgently seize an article owned, possessed, or kept by the person arrested, a public prosecutor or a judicial police officer may seize, search, or inspect such article without a warrant within 24 hours from the time of arrest (Article 217(1) of the Criminal Procedure Act), and where it is necessary to continuously seize the seized article, a warrant of search and seizure shall be requested without delay. In such cases, the request for a warrant of search and seizure shall be made within 48 hours from the time of arrest (Article 217(2) of the same Act)

The purpose of Article 217(1) of the Criminal Procedure Act is to prevent related persons from destroying or concealing evidence and to ensure prompt securing of evidence related to criminal facts by notifying that an investigative agency was arrested a suspect in the event of emergency arrest to accomplices or related persons. Unlike Article 216(1)2 of the Criminal Procedure Act that provides for seizure, search or inspection at the site of arrest, search or inspection of evidence, the objects owned, possessed, or kept by the person arrested at a place other than the place of arrest can be subject to objects owned, possessed, or kept by the person arrested at a place other than the place of arrest.

B. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

(1) On October 5, 2016, the police officers belonging to the Seoul Regional Police Station arrested the Defendant who traded narcotics with a disguised trader in front of the 20:00 Gyeonggi-si ( Address 1 omitted) on the road in Gwangju-si, Gwangju-si, and seize one vinyl package (Evidence 1) containing approximately 9.50g of a disguised trader at the site.

(2) At around 20:24 on the same day, the above police officers conducted a search on the Defendant’s residence located in the Gyeonggi-si ( Address 2 omitted) in Gwangju-si without a warrant at around 2km, and sought an additional number of vinyl bags (Evidence 2) containing approximately 4.82 g of Metepia, etc. in small air conditioners, etc., and seized them.

(3) Afterward judicial police officers filed a request for a subsequent search and seizure warrant with respect to one of the above plastic bags containing approximately 4.82 g of the above Metepia (Evidence No. 2) with the prosecutor on the ground of the need for continuous seizure, such as the request for appraisal. On October 7, 2016, a subsequent search and seizure warrant was issued by the prosecutor’s request on the basis of the Seoul Central District Court’s warrant officer.

C. In light of the above reasons for emergency arrest against the Defendant, the time and background of search and seizure, and the details of issuance of post warrant, etc., it shall be deemed that Metepia, which was urgently seized by an investigation agency at the Defendant’s residence, within the scope necessary for the investigation of criminal facts constituting the grounds for emergency arrest, and thus, lawful seizure pursuant to Article 217 of the Criminal Procedure Act. The lower court, based on evidence No. 2, etc., affirmed the first instance judgment convicting the Defendant of charges of violation of the Act on the Control of Narcotics, Etc. on October 5, 2016, which is justifiable in accordance with the aforementioned legal doctrine. In so determining, the lower court did not err by misapprehending the legal doctrine on the rules of law regarding the exclusion of illegally collected evidence, contrary

2. The remaining grounds of appeal

The argument that the lower court’s determination of sentencing contains an error of law beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules constitutes an allegation of unfair sentencing. According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is imposed, an appeal may be filed on the ground of unfair sentencing. Therefore, in this case where the Defendant was sentenced to a more minor sentence, the argument that the above assertion

The remaining grounds of appeal are not legitimate grounds of appeal under Article 383 of the Criminal Procedure Act.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)