미국의 압수수색절차에 대한 사법적 통제의 단계구조 — 디지털 증거를 중심으로 —

The Criminal Procedure Code gives the judiciary traditional mandate over the search and seizure process. In order to protect constitutional rights as well as ensure social security, the whole procesure is controlled by a court warrant. However, when it comes to digital evidence, the court, which intends to control the individual search and seizure procedure in advance, experiences difficulties in anticipating every possible circumstance, regulating the procedure properly, and securing appropriate outcomes. In order to solve these problems, it is necessary with regard to judicial review of search and seizures to focus from the issuance of search warrants to the actual trial where the legality of digital evidence and seizure is disputed. Enhancing the appropriateness of the whole search and seizure procedure depends on the timing of judicial intervention and its nature. In the United States, the prosecutor's or the investigator's affidavit ensures the appropriateness of seizures. The court issues a search warrant only when its veracity is secured through the affidavit. Also, investigating agencies employ methods such as a filter team in order to avoid a conflict between protecting constitutional rights and conducting a search process. Regarding the admissibility of digital evidence, US courts undertake to determine the admissibility of digital evidence with motions to suppress and thereby supervise the search and seizure procedure. Such attitude of US courts, which places more emphasis on the post-procedural control of the evidence-obtaining process, will provide us with significant implications for our case due to characteristics of digital evidence.