미국의 압수수색영장 일부기각 및 압수방법 제한에 관한 실무연구- 디지털 증거를 중심으로 -

The Korean courts have issued search and seizure warrant frequently with deletion of one of search premises and seizure properties which an investigation agency had sought - without any expression of the reasons for those ‘partial denials.’ With respect to digital evidence, the courts started to place “ex ante regulation” on the warrants. On top of that, Korean criminal procedure law which was revised recently states that seizure of computer or digital storage media is allowed only when copy or printing of electronic stored information is infeasible. These serious changes are definitely undesirable when we compare our current system to that of the U.S. First, in the U.S., a magistrate judge always exchanges her opinion with a prosecutor or orders to prove the probable cause sufficiently when she believes that a warrant which the prosecutor seeks is overbroad. Therefore, when she reaches to a conclusion that she should deny the warrant after that discussion, the prosecutor may know the reason why she has denied it. On the contrary, a Korean prosecutor has no way for her/him to get to know the reason for partial denial because a Korean judge never shows the reason. In light of the U.S. system, this “no-reason denial.” is obviously inappropriate. It is high time to adopt a system that can place some burden on judges. The judges should express their reason for denial so that the prosecutors can understand what was wrong and what would be needed for the issuance of warrant. Second, ex ante regulation on a warrant is clearly against the decisions of the Supreme Court of the U.S. the Court pointed out that “nothing in the language of the Constitution or in the Supreme Court's decisions interpreting that language suggests that, in addition to the requirements set forth in the text of the Fourt Amendment, search warrants also must include a specification of the precise manner in which they are to be executed.” The reasonableness of a search pursuant to a warrant must be assessed ex port rather than ex ante. Ex ante regulation has no legal effect even though this limit is stated in the warrant by a magistrate judge. The Circuit Courts follows above the decisions of the Supreme Court except only the 9th Circuit. When we examine the federal search and seizure laws, Rule 41, it is clearer that ex ante regulation is not lawful. A magistrate jude must issue a warrant if a prosecutor succeed to prove only probable cause including particularity. Finally, it is also undesirable to allow in principle only copying or printing of digital evidence without seizure of a digital storage media or computer hard disk itself. There is no language in the text of U.S. laws that only copying is allowed. U.S. law stipulates not only copying information but also seizure of a storage media in parallel.