미국의 법리상 휴대폰의 전자정보의 압수수색과 형사소송법 개정 제안

This paper explores the way of how the criminal law system should protect personal information on a cellphone in a criminal procedure. Recently, the US Supreme Court held that police must obtain a search warrant to search the digital information and ‘cell site location information’ of a cell phone, which had not been required before under the ‘searches incident to a lawful arrest doctrine’ that allows police to search the person of an arrestee and the area within the arrestee’s immediate control without a warrant when lawfully arresting an arrestee. More specifically, in Riley v. California (2014) the Supreme Court held that police must obtain a search warrant to search the digital information of a cell phone when arresting an arrestee on the grounds that cell phone differs from other objects, and digital information itself cannot be a weapon that threats the arresting police, and the destruction of evidence can be prevented by simple methods, such as disconnecting the power of a cellphone or putting the cellphone into a faraday bag that prevents radio signal from entering the cellphone. In Carpenter v. the United States (2018) the US Supreme Court held that police must obtain a search warrant to search the cell site location information even if police makes a lawful arrest under the third-party doctrine in which the information presented by people voluntarily to the third-party does not have “reasonable expectation of privacy”. However, the Korean Criminal Procedure Act still allows police to seize the digital information of a cellphone without a seizure and search warrant when making a lawful arrest, and also to search the digital information up to 48 hours without a warrant until obtaining a post-warrant. Here, two decisions of the US Supreme Court showed us where the Korean Criminal Law system is supposed to go. Therefore, this paper suggests that the Korean Criminal Procedure Act should stipulate the digital information as a subject of search and seizure, and exclude the digital information of a cellphone from subjects of warrantless search and seizure because the current Act doesn’t reflect the technological development of a cellphone, leading to people’s privacy being threatened.