미국 연방대법원의 “휴대폰에 저장된 개인정보 보호”에 대한 판결의 의의 - 피체포자의 휴대폰에 저장된 정보의 영장 없는 수색 제한에 관한 RILEY 판결을 중심으로

In modern information-oriented society, mobile phones become a necessity of our life and at the same time an important evidence in criminal justice to find the truth. Since importance of mobile phone has significantly increased as a device with enormous amount of personal information, the investigation agencies face more challenges to intrude into privacy of people while seizing and searching cell phones. Against this backdrop, Riley v. California, the recent decision by the Supreme Court of the US has implications on controling seize and search of cell phones by the investigation agencies. The Court ruled that police generally may not, without a warrant, search digital information on a cell phone seized from an individual incident to arrest. The Court rejected, “any expansion of search-incident to-arrest because it implicates far greater individual privacy interests than the brief physical search generally involved in a search incident to arrest. The amount of personal information a person stores on today’s smartphones or even standard cell phones is far greater than they could ever carry on their person otherwise.” Under the law in the US, the police does not required to get search and seizure warrant after reasonable search following search incident to arrest exception. For this reason, it is required to limit the scope of warrantless searches incident to a lawful arrest, and strictly apply the Fourth Amendment right to search of electronic devices with personal information. Meanwhile, the Court also allowed for law enforcement to search a phone without a warrant based on the "exigent circumstances" exception. This paper will examine implications of Riley v. California decision. It also will present ways to improve digital investigation into mobile electronics such as cell phone and others with personal information to protect ‘right to privacy’ in Korea. Practically, the investigation agencies are allowed warrantless search and seizure of cell phone. If they find evidence related to crime, the police requests issuance of warrant within 48 hours from the suspect is arrested. However, when there is no evidence related to crime, the police returns it to the arrestee. Considering implications of the Supreme Court’s unanimous ruling on the Riley case that the police shall get search and seizure warrant first to look into data on cell phones, the investigation agencies in Korea should improve practices of search and seizure of cell phones under the current legal frameworks. To this end, this paper suggests that the investigation agencies shall request issuance of search-and-seizure warrant right after warrantless seizure of cell phones incident to arrest. Under the exigent circumstances, for example, the prevention of escape, the destruction of evidence or in the interest of officer safety, the investigation agencies shall search and seizure the cell phone first then request issuance of the search warrant within 48 hours from the suspect is arrested. In addition, it is needed to improve and overhaul the current investigation manuals for the investigation agencies or legal system in line with advancements in technologies for the purpose of protecting fundamental rights of people and promoting effective investigation.