압수·수색에 있어서 증거수집 단계의 관련성과 증거사용 단계의 관련성 - 대법원 2023. 6. 1. 선고 2018도18866 판결을 중심으로 -

Supreme Court Decision 2018Do18866, rendered on June 1, 2023, ruled that “investigative authorities may not seize evidence unrelated to the criminal allegations forming the basis for the issuance of a warrant, nor may they use seized items or information as evidence of guilt for crimes unrelated to the allegations in the search and seizure warrant that served as the basis for the seizure without obtaining a separate warrant.” This ruling first established the general legal principle regarding the so-called ‘use of seized items as evidence in unrelated cases’. Search and seizure by investigative authorities is a coercive measure restricting the rights of the person subject to seizure. The systems governing search and seizure, including the warrant requirement, exist not to guarantee the suspect's right to defense regardless of whether the person subject to seizure is a suspect, but to protect the rights of the person subject to seizure—such as the right to privacy—which are restricted for investigative purposes. The addition of the ‘relevance’ requirement through the 2011 Criminal Procedure Act amendment was legislated to enhance the effectiveness of controlling such intrusive measures against the rights of the subject person of seizure in accordance with the principle of proportionality. The review of the evidence collection stage of a seizure and search (the so-called existence of evidentiary relevance) and the review of the evidence use stage (the so-called existence of factual relevance) must be distinguished, as they differ in the purpose of the legal review and the corresponding direction and methods of that review. In the debate over whether seized items may be used as evidence in unrelated cases, the so-called ‘unrestricted use doctrine’ is not an argument based on the review results of the evidence collection stage of the search and seizure, but rather an argument based on the review results of the evidence use stage. As the 2018Do18866 decision appropriately determined, this doctrine cannot be accepted as it may directly violate the rule of “prohibition of general warrants”, one of the essential elements of the warrant principle. The limitation on the scope of evidence use, viewed in light of the constitutional perspective discussed earlier, must be determined by examining: ① whether the facts of the separate crime allegations fall outside the scope that the person subject to seizure could have recognized or anticipated upon being presented with the crime allegations stated in the initial warrant, thereby requiring a separate opportunity to participate to the search and seizure process; ② whether allowing investigative agencies to proceed without obtaining a separate warrant risks transforming the initial warrant into a general warrant, thereby undermining the legal oversight of investigative agencies.