Defendant

Prosecutor

Suwon District Court Decision 2018No3609 Decided October 31, 2019

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. Summary of the facts charged and the judgment of the court below

A. Facts charged

At around 18:09 on March 7, 2018, the Defendant, from the subway station 3 lines located in Mangnsan-si, Goyang-si to the mobile phone equipment with a camera function (hereinafter “instant mobile phone equipment”) in front of the front of the main car, taken the front of the female victim’s fright, seated in the front of the main car.

In addition, from March 7, 2018 to April 18, 2018, the Defendant taken photographs of the body of the victims who could cause sexual humiliation or shame on seven occasions, such as the list Nos. 1 to 4 of the crime inundation table of the lower judgment, against their will.

B. The judgment of the court below

The lower court reversed the judgment of the first instance court convicting the Defendant of this part of the charges on the following grounds: (a) the police officer’s seizure of the instant mobile phone device (Evidence No. 1) and the restoration photograph reproduced and printed out by searching information recorded thereon when arresting the Defendant in the act of committing an offense; (b) on the grounds that there is no proof of a crime, it is impossible to recognize the admissibility of evidence of a photograph reproduced and printed out

1) No seizure without a warrant under Article 218 of the Criminal Procedure Act is permitted at the site of the arrest of flagrant offenders.

2) Even if it is possible to seize voluntarily produced articles in accordance with Article 218 of the Criminal Procedure Act at the site of arrest in the act of committing an offense, it may be suspected that the Defendant had no voluntary intent to submit the cellular phone of this case, but there is insufficient proof of

2. Determination

A. The part that the seizure under Article 218 of the Criminal Procedure Act regarding the cellular phone of this case, which is the premise of the judgment of the court below, is unlawful is not acceptable for the following reasons.

1) Whether seizure under Article 218 of the Criminal Procedure Act has been conducted at the site of the arrest of flagrant offenders

Any person who is committing or immediately after committing a crime may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act), and a public prosecutor or judicial police officer may seize articles left behind by a suspect, etc. or articles voluntarily submitted by an owner, possessor or custodian without a warrant (Article 218). As such, seizure of articles voluntarily submitted by a holder, etc. at the scene of arrest in the act of crime or at the scene of an offense is allowed without a warrant under Article 218 of the Criminal Procedure Act. In such cases, a public prosecutor or judicial police officer need not obtain a separate warrant after the fact (see Supreme Court Decisions 2019Do13290, Nov. 14, 2019; 2015Do13726, Feb. 18, 2016).

According to the above legal doctrine, the lower court erred in its judgment that the goods cannot be seized pursuant to Article 218 of the Criminal Procedure Act even if they are voluntarily submitted at the site of the arrest of flagrant offenders, and that they should obtain an ex post facto warrant under Article 217(2) of the Criminal Procedure

2) Whether the submission of the mobile phone of this case is voluntary

A) According to the records, the following process of the instant trial is revealed.

(1) In a written opinion submitted by the Defendant on the instant indictment, the Defendant recognized all the instant facts charged, asserted only the grounds for sentencing, and presented the same purpose on the first day of trial.

(2) After the date of the first trial, the state appointed defense counsel also recognized all the facts charged in the instant case and submitted materials consistent with the argument only on the grounds for sentencing.

(3) As above, the Defendant and the defense counsel did not dispute whether the submission of the instant mobile phone devices was voluntary or not, and did not appeal the judgment of the court of first instance which convicted all of the facts charged in the instant case.

(4) The prosecutor appealed the judgment of the court of first instance on the sole ground of unreasonable sentencing, and the court below, on the first trial date, closed the pleadings without examining whether or not the submission of the cellular phone of this case was voluntary, and rendered a decision to deny ex officio the discretion on the grounds that the decision appears to have not been made due to the psychological decline due to the arrest of the criminal in the act of crime, the procedure for seizure by voluntary submission, or the notification of the police officer

B) If the progress of the trial of this case and the grounds for the judgment of the court below are the same as above, the court below should have deliberated and judged further by ex officio whether or not the submission of the cellular phone of this case, which was not at all at issue, was the method of conducting additional evidence investigation or urging the prosecutor who was unable to feel the need to prove such voluntariness.

B. Nevertheless, the lower court determined that the admissibility of the instant mobile phone machine was not recognized on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the seizure of voluntarily produced items at the site of arrest in the act of committing an offense, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

3. Conclusion

Therefore, the non-guilty part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Noh Tae-tae (Presiding Justice)