영장 없는 자동차 수색에 관한 연구- 미국법상의 논의를 중심으로 -

Nowadays automobile is widely used and has become an essential part of our life. While driving a car, we may be stopped by a police officer for sobriety test,inspected for search of an AWOL soldier or for criminal investigation, and accept thefact that we may be inspected by a police or military officer on a bus. Our Constitution requires a warrant issued by a judge in order to search a personor premise against his or her will. However, due to the mobility of automobile,automobile search calls for a different legal framework compared to house search. The Fourth Amendment of the U.S. Constitution stipulates ‘probable cause’ as therational standard in order to protect individuals from wrongful search and seizure. Inthe U.S., since the Prohibition period(1920~1933) cars have been deeply involvedin certain types of crime that require space movement such as bootlegging andsmuggling illegal aliens. Recently, in order to take control over the war againstdrugs, the U.S. Government has attempted to stop and search automobile even forminor traffic law violations such as structural deficiency or wrongful lane change. It may be the Government’s attempt to send out a strong message that the Governmentwill not tolerate any misdemeanor and strictly punish any felony crimes, similar tothe Broken Windows Theory. The Government monitors suspicious automobile, andtries to regulate crime by stopping cars on the basis of a police officer’s experienceand feeling even when there is no probable cause. There are rigorous criticisms thatthe Government may arbitrarily execute the law and even cause racial discrimination. A police officer will check the driver’s license and registration paper, inquireabout the driver’s identity, travel purpose, destination, and possession of narcotics,and then search the automobile with the driver’s consent. Sometimes a sniffer willcome. These automobile stops bring about many legal issues, and therefore there aremany precedents regarding automobile search accumulated in the U.S. Automobile stop is a form of seizure stipulated in the Fourth Amendment, andrequires a warrant in principle. However, if a case falls under any one of theexception to the Fourth Amendment, an automobile may be searched without awarrant. The scope of the automobile exception to the warrant requirement has expandedfor practical causes. There has been much criticism to this expansion, and recentlyin the Gant case, the U.S. Supreme Court ruled that law enforcement may avail itselfwith warrantless search only when there is a possibility of destroying evidence ofthe crime for which the arrest is being made, or the circumstance poses immediatedanger to the police officer. This case is regarded as an attempt to limit theconstantly expanding scope of warrantless search. The reasonableness of a searchmust be balanced between the individual’s privacy and the law enforcement’s need. Due to recent development in scientific technology,‘license plate readers’ are nowbeing used. By reading the license plate and identifying the owner of the automobile,we can verify whether the vehicle is stolen or the vehicle owner is wanted, and usethis information in criminal investigations. There are concerns regarding this type ofmonitoring system using scientific technology. We now live in the‘era of big data’where we fear that personal information will be stored and analyzed, and anindividual's location may be monitored and utilized or abused without his or herknowledge. Recently in Korea, there have been a series of incidents in whichpersonal information was leaked, and the importance of personal information andprivacy is emphasized more than before. In addition, as more types of electronic devices are attached to the automobile,we shall expect further legal issues to arise regarding the possibility of searchingthese electronic devices such as the navigation system, despite the fact thatautomobile search is permitted. In Korea, we do not have much debate regarding‘automobile search’, and thereforenot much studies nor research accumulated about it. We must focus and look into theissue of how to rationally limit the boundary of automobile search in order to protectindividuals’ basic rights. I anticipate on the development of further theoreticaldiscussions along with court rulings regarding automobile search in the future. The Fourth Amendment to the United States Constitution protects individualsfrom “unreasonable searches and seizures” and invokes probable cause as thebaseline standard for determining reasonableness. Whether a search is reasonable,however, requires a detailed factual analysis which balances a suspect’s privacyinterests with the government’s need to conduct a search. This study explores the U.S.’s widely used warrantless automobile searchpractices with primary reference to prevailing U.S. Supreme Court opinion. Warrantless searches of motor vehicles after a stop are constitutional as long as(1) the officer has probable cause for the search, and (2) the vehicle is mobile,meaning it can be driven away at any time. It should be noted that warrantless automobile searches must not be abused as anattempt to circumvent the cumbersome procedures for obtaining a warrant. It is highly needed to weigh the conflicting interests between protection ofcitizen’s constitutional rights and the efficiency of investigations in conducting awarrantless automobile search.