In cases where narcotics, etc. are found concealed or suspected in the course of inspection of exported and imported goods, whether the warrant requirement principle applies to measures taken by the head of a customs office at the request of a prosecutor pursuant to Article 4(1) of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Etc. (affirmative with restriction)

In the case of search and seizure by an investigative agency, the due process and warrant principle as prescribed by the Constitution and the Criminal Procedure Act shall be met unless it falls under the grounds for exception permitted under the Act. In a case where a customs officer finds that narcotics, etc. are concealed in the course of conducting an inspection of exported and imported goods, or suspects so suspected, a public prosecutor may secure a sufficient surveillance system to prevent the distribution of narcotics, etc. and make a request to the head of a customs office to the effect that they are required to take out or bring in to the Republic of Korea for the purpose of an investigation, and the head of a customs office may take necessary measures to comply with such request (Article 4(1) of the

Of course, the inspection of opening, collecting, component analysis, etc. of goods conducted in the procedures for customs inspection of exported and imported goods is conducted for the purpose of adequate customs clearance of the exported and imported goods, and thus, such inspection cannot be deemed a compulsory disposition by an investigation agency. As such, customs officers may proceed with such inspection without a search and seizure warrant. In cases where a customs officer voluntarily submits to an investigation agency goods possessed or kept in the course of performing customs inspection, even without the consent of the owner, the seizure of the relevant goods cannot be deemed to have been conducted unless the investigation agency forced possession. However, unlike the cases where an investigation is conducted for the purpose of adequate customs clearance of the exported and imported goods as seen above, the act of opening and inspecting specific export and imported goods as part of the measures taken pursuant to Article 4(1) of the Act on Special Cases Concerning the Prevention of Illegal

Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 199(1), 215(1), 216(3), and 218 of the Criminal Procedure Act; Article 4(1) of the Act on Special Cases Concerning the Prevention of Illegal Trafficking in Narcotics, Etc.

Supreme Court Decision 2013Do7718 Decided September 26, 2013 (Gong2013Ha, 2048)

Defendant

Prosecutor

Attorney More than Attorney Lee Jong-chul

Seoul High Court Decision 2014No338 decided June 27, 2014

The appeal is dismissed.

The grounds of appeal are examined.

1. On June 27, 201, part of the violation of the Act on the Control of Narcotics, Etc. due to the importation of phiphones (flaps)

A. The Constitution provides that “No person shall be subject to search and seizure except as otherwise provided by Act (the latter part of Article 12(1) of the Constitution of the Republic of Korea), and that “in the case of arrest, detention, search or seizure, a warrant issued by a judge upon the request of a prosecutor shall be presented according to lawful procedures: Provided, That in the case of a flagrant offender, or in the case of a danger of escape or destruction of evidence that constitutes a crime corresponding to a punishment for a maximum term of three years or more may be requested ex post facto warrant (Article 12(3) of the Constitution of the Republic of Korea).”

The Criminal Procedure Act has provisions embodying due process and warrant requirement regarding search and seizure. According to the foregoing, a prosecutor may conduct search, seizure, or inspection by a warrant issued by a judge of a district court upon a request from the judge of the competent district court only to the extent that there is a circumstance to suspect that a suspect committed a crime in the course of a criminal investigation and that it may be recognized as having relation to the relevant case (Article 215(1)). In a case where it is impossible to obtain a warrant from a judge because of urgency at the scene of a crime during or immediately after the crime, seizure, search, or inspection without a warrant may be conducted without a warrant; however, in such a case, a warrant shall be obtained after the adoption of the principle of compulsory disposition (Article 216(3)). The Criminal Procedure Act provides that compulsory disposition necessary for an investigation agency’s activities to discover and secure a criminal and to collect and preserve evidence shall not be taken without delay (Article 199(1

In the case of search and seizure by an investigative agency, the due process and warrant principle as prescribed by the Constitution and the Criminal Procedure Act shall be met unless it falls under the grounds for exception permitted under the Act. In a case where a customs officer finds that narcotics, etc. are concealed in the course of conducting an inspection of exported and imported goods, or suspects are required, a prosecutor may, in order to prevent the distribution of narcotics, make a request to the head of a customs office to the effect that a foreign country is required to be taken out or brought into the Republic of Korea for the purpose of an investigation, and the head of a customs office may take necessary measures to comply with such request (Article 4(1) of the Act on Special Cases concerning

Of course, an inspection conducted in the process of customs clearance of imported and exported goods such as opening, collecting samples, component analysis, etc. is conducted for the purpose of adequate customs clearance of imported and exported goods, and thus, it cannot be deemed a compulsory disposition by an investigation agency. As such, customs officers may proceed with such an inspection without a search and seizure warrant. In cases where a customs officer voluntarily submitted to an investigation agency goods held or kept in the course of customs clearance to the investigation agency for the purpose of customs clearance, it cannot be deemed that the relevant goods were seized unless the investigation agency acquired possession by force (see Supreme Court Decision 2013Do718, Sept. 26, 2013). However, unlike the cases where an investigation is conducted for the purpose of adequate customs clearance of imported and exported goods, it is reasonable to view that the act of opening and inspecting specific imported and exported goods and acquiring possession of their contents as part of the measures taken pursuant to Article 4(1) of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Etc

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

(1) The prosecutor obtained information that the defendant wants to import the penphones in the form of air express shipments which pass through the United States in Mexico, and brought them into the Republic of Korea under surveillance by the U.S. investigation authorities and the Incheon Airport Customs and tried to arrest the defendant as the offender upon receipt of such information.

(2) The narcotics investigation department of the Incheon Airport Customs and its affiliated customs officers have brought the express cargo delivered to the Incheon Airport Port to their office without undergoing ordinary customs clearance procedures.

(3) When the prosecutorial investigator discovered a phiphone in the above express cargo, he/she confiscated the express cargo containing phiphones from a customs officer without a warrant in the form of arbitrarily receiving the express cargo containing phiphones from a customs officer, and controlled delivery as substitute cargo.

(4) The prosecutorial investigator failed to deliver the cargo to the person who received the cargo at the place of storage with the cooperation of the shipping agents, because the cargo was not delivered to the person whose identity is unknown at the place of residence indicated in the bill of carriage.

C. The lower court upheld the first instance judgment that acquitted the Defendant of this part of the facts charged on the following grounds. ① Even if the aforementioned activities were to be seized and seized for the purpose of collecting evidence regarding specific criminal facts from the beginning by an investigative agency, the warrant requirement was violated since it did not have been issued a prior or ex post facto warrant. ② As evidence acquired through illegal search and seizure, seizure records, and expert records on seized articles are inadmissible, and the remainder of the evidence alone is insufficient to recognize the facts charged.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, there were parts of the lower judgment’s reasoning that were insufficient to determine the role of customs officers, but the lower court’s determination is justifiable as it was based on the legal doctrine as seen earlier. In so determining, the lower court did not err

2. The violation of the Act on the Control of Narcotics, etc. Caused by Import of Handphones, Sale and purchase of Handphones, and waterway;

The lower court upheld the first instance judgment that acquitted the Defendant on this part of the facts charged, on the grounds that there was no proof of crime. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is justifiable. The lower court did not err by exceeding the bounds of

3. Conclusion

The prosecutor'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 Park Poe-young (Presiding Justice)