통제배달 수사 관련 압수수색영장의 필요성과 참여권에 관한 소고

When a customs officer, in the course of an ordinary customs clearance procedure, discovers narcotics in accordance with the procedures prescribed by the relevant laws, such discovery is made through an administrative investigation process, and therefore the principle of warrant requirement does not apply. When the customs officer lawfully discovers narcotics in accordance with administrative investigation procedures, he or she may voluntarily submit them to an investigative agency as a lawful possessor or custodian. Accordingly, the investigative agency that receives the narcotics—namely, a special judicial police officer or a prosecutor who receives possession from such officer—lawfully acquires possession of the narcotics. However, at this stage, the possession acquired by the investigative agency is merely temporary or provisional possession for the purpose of apprehending the recipient through a controlled delivery operation, and thus cannot be regarded as a voluntary submission subject to seizure. This is because seizure requires continuous possession, which must be final and conclusive in nature. Therefore, in conducting a controlled delivery investigation after taking possession of the narcotics, the investigative agency, just as in an ordinary investigation, retains discretion to determine whether to proceed through voluntary investigation or through compulsory measures depending on the circumstances of the investigation. Consequently, at the stage when the agency determines that seizure is necessary, it may lawfully seize the narcotics pursuant to the procedures prescribed in the Criminal Procedure Act, either under a warrant for search and seizure, through voluntary submission by the recipient, or as abandoned property. From this perspective, although the Supreme Court’s series of decisions concerning controlled delivery investigations may appear inconsistent, they can be logically reconciled when the unique nature of controlled delivery operations and the requirement of continuity as an essential element of seizure are properly understood. Furthermore, once the smuggled physical substance has been objectively confirmed to be narcotics, the recipient’s ownership of the substance loses its value as a legally protected interest. Accordingly, the recipient cannot be recognized as having any participatory right as an owner. Only when the recipient voluntarily submits the narcotics to the investigative agency may he or she be recognized as having such a participatory right in the capacity of a possessor.