미국법상 수색의 개념에 관한 연구

Search, a form of compulsory investigation, is described as a forceful disposal conducted on houses, effects, persons or other area, with a view to discovering effects to be seized or persons to be arrested. Since the Fourth Amendment to the U.S Constitution prescribes that searches and seizures should not be unreasonable and should be carried out upon probable cause, it considerably affects the legal regulations concerning searches and seizures by investigation authorities. I find it would be useful both in practice and theory to examine America's legal precedents on search, given the fact that recently in Korea, the importance of the physical evidence is more stressed in investigations than the parol evidence. This paper explores the relationship between the concept of forceful disposal and warrant requirement, and demonstrates based on historical facts that the Founders introduced the Fourth Amendment with the aim of regulating house searches. Significant U.S. Supreme Court cases concerning search such as Olmstead v. United States, Katz v. United States, and Kyllo v. United States are also examined to gain an understanding of how cases on search in the U.S. are evolving with respect to the relationship with property rights. The examination of the plain view doctrine, open-field doctrine, abandon doctrine, and third party doctrine, etc. which are not dealt with in the Fourth Amendment to the U.S. Constitution, is followed by the analysis of the Federal Court decisions with factors including physical damages, audio-visual standards, and house searches. I then point out that the decisions lack consistency. Moreover, this paper examines problems arising from electronic tracking devices, and high-tech searches, such as the appropriateness of regulating new technologies only by interpretation of the Fourth Amendment, when the rapid development of science and technology means that such technologies were not expected at the time of drafting the Constitution. Also, this paper looks at which institution the court or Congress should play a leading role during the aforementioned case. Through this paper, I hope that the discussions in the U.S., which has amassed plenty of precedents on search issues, can serve as useful references in advancing the theory and practice of Korea and help bring fruit to the Korean society.