How far may police seize electronic information from a phone handed over voluntarily? Supreme Court Decision 2016Do9596 on the scope of seizure and the suspect's participation

Question

Article 106(1) of the Criminal Procedure Act allows the court to seize, insofar as it is limited to things recognised as related to the criminal case, evidence or things considered subject to confiscation, and Article 106(3) provides that where the object of seizure is a storage medium, the court is to receive output or a copy within a defined range of the stored information, seizing the medium itself only where that method is impossible or markedly difficult. Article 218 permits judicial police officers to seize without a warrant things abandoned by the suspect or another person, or things voluntarily submitted by the owner, possessor or keeper, and Article 219 applies Articles 106, 121 and 129, among others, to such seizure and search. The question is what electronic information may be seized from a storage medium handed over voluntarily, and what must be done when the medium is taken away to be searched, copied and printed.

Decision 2016Do9596 raises that question on a mobile phone the police took from the defendant without a warrant on 7 June 2015. The police then searched the phone and printed more than 2,000 photographs of women, including images of an offence committed in 2014, which the prosecution sought to use to prove that offence.

Material to check

The statutes are Articles 106, 218, 219, 121 and 129 of the Criminal Procedure Act. Article 106 governs seizure and, in paragraph 3, output or copying of stored information within a defined range; Article 218 covers seizure without a warrant of voluntarily submitted items; Article 219 applies the listed provisions, including Articles 106, 121 and 129, to seizure, search and inspection by judicial police officers; Article 121 gives the prosecutor, the defendant or counsel the right to participate in the execution of a seizure and search warrant; and Article 129 requires a list to be prepared and served on the owner, possessor, keeper or the like when something is seized. Decision 2016Do9596 cites all five of these articles for its holdings.

The decisions are Decision 2016Do9596 and the two it cites: Decision 2016Do348 (18 November 2021, full bench), which states the limits of seizure of voluntarily submitted electronic information and of taking a medium itself away, and treats indirect or circumstantial evidence found in the same type of data in smartphone filming offences, and Decision 2021Do11170 (27 January 2022), which restates the same scope rule and the rule on the suspect's participation and service of a seizure list.

Possible readings

Read with Decisions 2016Do348 and 2021Do11170, where the submitter's specific intention as to the scope of the submission was not properly checked and so the target and scope of the seizure are unclear or unknowable, only electronic information that is related to the suspected offence which motivated the voluntary submission and has at least minimal value in proving it can be seized. Relatedness means a concrete and individual connection, judged from the content and nature of the suspected offence and the course of the submission; merely being the same or a similar kind of offence is not enough.

Indirect and circumstantial evidence can meet that test. As Decision 2016Do9596 puts it, in an illegal filming offence using a smartphone, where the crime's nature raises suspicion of habituality or of a series of acts expressing a sexual preference or tendency and direct evidence is likely to remain in the phone as image or video files, powerful indirect or circumstantial evidence found in the same type of stored data can have a concrete and individual connection with the suspected offence. The Court also notes that such illegal filming material is generated by the crime, is subject to confiscation, and needs to be seized quickly to block its distribution.

On procedure, where an investigator receives a medium or its copy containing both seizable and other information and takes it to the office to search, copy and print, Articles 219 and 121 require that the person subject to seizure or search, or counsel, be given an opportunity to participate, that a seizure list specifying the seized files be prepared and served, and that steps be taken to prevent arbitrary copying of unrelated data. Without such steps the seizure and search cannot be lawful unless there are special circumstances, such as an express refusal to participate or a nature and course of the procedure showing that the point of guaranteeing participation was not substantially impaired, and this holds even where only crime-related information was copied or printed.

What the decisions held

The Suwon District Court (2 June 2016, 2015No6478) had set aside the first-instance judgment of guilt on the 2014 offence and acquitted: the video of the 2014 offence was not connected with the 2015 offence, the defendant's right to participate in the search of the phone was not guaranteed, and no list of the seized electronic information was served, so the video was evidence collected in breach of the warrant requirement and inadmissible, with nothing else to corroborate the confession.

The Supreme Court held that the video of the 2014 offence was lawfully seized through the voluntary submission and was admissible. Applying the rule, it found the scope of the submission unclear, since it was unknown whether the defendant consented to hand over only the 2015 material or also the 2014 material; but about 2,000 videos had been taken with the same smartphone over some two years, raising suspicion of habituality or a series of acts driven by sexual preference, and they could serve as indirect or circumstantial evidence of the motive, circumstances, means and methods of the 2015 offence, so the 2014 video had a concrete and individual connection with the 2015 suspected offence. The police searched the phone together with the defendant during the first interview at 13:15, so he did take part in the search; and although no seizure list specifying the files was prepared and served, the five photographs shown to him at the second interview that same day at 16:45 were visibly printouts of the 2014 video taken at one time and place, so the nature and content of the omission did not amount to a substantial infringement of his procedural rights.

The Court therefore held that the appellate court had misunderstood the law on illegally collected evidence and vacated the judgment. Because the acquitted part stood in a relation of concurrent offences with the convicted part under the first part of Article 37 of the Criminal Act and a single sentence had to be imposed, the whole judgment was vacated and the case remanded to the Suwon District Court. The defendant's own appeal was rejected as a challenge to the trial court's assessment of evidence, with no error in the legal rule on another person's body capable of arousing sexual desire or shame or in the limits of free evaluation.

Points left open

The decision leaves the boundary of the 'special circumstances' exception unsettled. On these facts no substantial infringement was found because only five photographs were shown, they were plainly printouts of one video, and they were presented the same day; how the exception applies where large or mixed volumes of unrelated private data were copied and printed, or where no presentation is made at all, is not decided.

The connection test was applied to an illegal filming offence committed with a smartphone, where habituality and a sexual tendency were suspected and the relevant file types were image or video files relatively clearly defined. Whether the same wide view of relatedness applies to other offences or to other kinds of electronic information is not decided here, and the decision also leaves the defendant's guilt on the 2014 offence to the court on remand.

When to reconsider

We revisit this brief if a later Supreme Court decision defines the 'special circumstances' exception or extends the relatedness test beyond smartphone filming offences, if the retrial on remand reaches a different admissibility result, or if Articles 106, 121, 129, 218 or 219 of the Criminal Procedure Act are amended.

Statutes referred to

• 형사소송법 제106조, 제218조, 제219조, 제121조, 제129조

Decisions referred to

• 대법원 2022. 1. 13. 선고 2016도9596 판결 · Decision ledger
• 대법원 2021. 11. 18. 선고 2016도348 전원합의체 판결 · Decision ledger
• 대법원 2022. 1. 27. 선고 2021도11170 판결 · Decision ledger

Verification status

All texts were read at the National Law Information Center on 24 October 2026: the decision in its published holdings, summary and full reasons, the current text of the Criminal Procedure Act articles it cites, and the published holdings and summaries of the two cited decisions.