Can a thing taken without a warrant from someone who does not own, possess or keep it be used against the accused? Supreme Court Decision 2009Do10092 on the 'seized item' and the 'photograph of the seized item'

Question

Article 218 of the Criminal Procedure Act provides that 'a judicial police officer may seize without a warrant a thing that the owner, possessor or custodian has voluntarily submitted.' The question is what follows when a judicial police officer takes a thing without a warrant from someone who is not its owner, possessor or custodian: may the thing, and a photograph of it, be used as evidence to prove guilt, and does the consent of the accused or counsel make it usable.

Decision 2009Do10092 raises that question on an appeal against conviction. A police sergeant found a steel pipe owned by the accused in the front yard of the accused's residence and seized it as though voluntarily submitted by the victim, who was not its owner, possessor or custodian, then photographed it; the accused had agreed to the photograph being used as evidence, and the lower courts relied on it.

Material to check

The statutes are Articles 217, 308-2 and 318 of the Criminal Procedure Act. Article 308-2, added on 1 June 2007, provides that 'evidence collected without following lawful procedures cannot be used as evidence.' Article 318(1) provides that documents or things to which the prosecutor and the accused have agreed may be used as evidence once their authenticity is admitted. Article 217, on compulsory measures without a warrant, permits a judicial police officer to seize, search or inspect without a warrant things owned, possessed or kept by a person arrested under Article 200-3 where there is an urgent need, within 24 hours of the arrest, and requires a warrant to be obtained to continue the seizure and, failing that, immediate return of the thing. The decision also quotes Article 218, which provides that 'a judicial police officer may seize without a warrant a thing that the owner, possessor or custodian has voluntarily submitted.' The current text of the articles carries amendments dated 4 August and 29 September 2026; the decision applies the provisions as quoted in its own text.

The decisions are Decision 2009Do10092 (28 January 2010) and the three it cites: Decision 2007Do3061 (15 November 2007, en banc) on the admissibility of seized items and secondary evidence obtained in breach of constitutional and statutory procedure, Decision 2008Do11437 (12 March 2009) on secondary evidence and the circumstances in which it may exceptionally be admitted, and Decision 2009Do11401 (24 December 2009) on items seized at the time of an emergency arrest and not returned when no warrant was issued under Article 217(2) and (3).

Possible readings

Decision 2009Do10092 states the general rule as the en banc Decision 2007Do3061 stated it: the normative force of the Constitution, which declares the due process and warrant principles governing seizure and search for the protection of basic human rights, and of the Criminal Procedure Act, which sets concrete standards for those procedures, must be firmly maintained; so evidence collected without following the procedures the Constitution and the Criminal Procedure Act prescribe, as well as secondary evidence obtained on that basis, cannot in principle be used to prove guilt. Only in an exceptional case, where the investigative body's procedural violation does not amount to an infringement of the substantive content of due process and excluding the evidence would run counter to the aim of harmonising due process with the finding of substantive truth, may the evidence be used.

Read with Article 218 as the decision quotes it, the rule becomes specific for warrantless seizures: where a thing is taken without a warrant from someone who is not its owner, possessor or custodian, in breach of that article, neither the seized item nor a photograph of it may be used as evidence to prove guilt. The decision adds that the importance of the warrant principle declared by the Constitution and the Criminal Procedure Act is such that consent by the accused or counsel to the use of the evidence does not alter that result. Decision 2009Do11401 held the same as to an item seized at the time of an emergency arrest and neither covered by a warrant nor returned immediately: consent does not make it usable.

The exception that Decision 2007Do3061 and Decision 2008Do11437 set out is assessed on all the circumstances of the evidence-gathering: the purpose of the procedural provision and the content and degree of the violation, the concrete circumstances of the violation and whether it could have been avoided, the nature of the right or interest protected and the degree of its infringement including its connection with the accused, the degree of relation between the violation and the collection of the evidence, and the investigative body's awareness and intention; for secondary evidence, whether the causal link between the first and second collection has been diluted or severed is central. Decision 2008Do11437 held that in-court statements by the accused and the victim could exceptionally be used where they were made voluntarily in open court on the basis of an uncautioned confession.

What the decisions held

Supreme Court Decision 2009Do10092 (28 January 2010) dismissed the defendant's appeal from the Daejeon District Court's judgment of 9 September 2009 (2009No1612). It held that the seized item and the photograph of the seized item could not be used as evidence to prove guilt, and that the defendant's consent to the use of the photograph did not change this, but that the error of the lower courts in relying on the photograph did not affect the result because the remaining evidence was sufficient to establish the offences.

The Court applied the rule to the facts it found in the record. Sergeant Non-party 1 of the Geumsan Police Station in Chungcheongnam-do found the steel pipe owned by the defendant in the front yard of the defendant's residence, yet seized it in the form of a voluntary submission by Non-party 2, the victim, who was not its owner, possessor or custodian, and then photographed the seized item. Although the first-instance evidence list, part of the trial record, showed that the defendant had agreed to the photograph (part of Exhibit 4) being used as evidence, the Court held that the seizure and the photograph, being evidence collected in breach of the warrant principle of the Criminal Procedure Act or based on such evidence, amounted to a violation infringing the substantive content of due process, so the photograph could not be used to prove the criminal facts notwithstanding the consent.

The Court noted that the first-instance court, whose judgment the appellate court adopted, had relied on the photograph to prove guilt, and that this was wrong; but, examining the remaining evidence adopted by the appellate and first-instance judgments against the record, it held the convictions on the facts as found to be justified and the alleged errors in the rules of evidence not to have affected the outcome.

Points left open

The decision holds that on these facts the violation infringed the substantive content of due process, so the exceptional case in which the evidence is usable did not arise. Its reasons state only the general rule and the exceptional case in the terms of the cited decisions, and then find on the facts that the requirement of that exception was not met. The circumstances to be weighed in assessing the exception are set out in Decision 2007Do3061 and Decision 2008Do11437, and Decision 2009Do10092 does not say which of them, if any, would produce the exception for a warrantless seizure under Article 218.

The decision addresses the seized steel pipe and the photograph of it. It does not decide about any secondary evidence derived from the seized item or the photograph, nor whether a defendant's consent can cure any other breach of the seizure and search rules beyond the warrant violation at issue here; Decision 2009Do11401 answers only the emergency-arrest setting under Article 217(2) and (3).

When to reconsider

We revisit this brief if the Supreme Court specifies when a warrantless seizure under Article 218 falls within the exceptional case that admits the evidence, if it addresses secondary evidence or consent as a cure for other seizure violations, or if Articles 218 or 308-2 of the Criminal Procedure Act are amended.

Statutes referred to

• 형사소송법 제217조, 제308조의2, 제318조

Decisions referred to

• 대법원 2010. 1. 28. 선고 2009도10092 판결 · Decision ledger
• 대법원 2007. 11. 15. 선고 2007도3061 전원합의체 판결 · Decision ledger
• 대법원 2009. 3. 12. 선고 2008도11437 판결 · Decision ledger
• 대법원 2009. 12. 24. 선고 2009도11401 판결

Verification status

All texts were read at the National Law Information Center on 24 October 2026: Decision 2009Do10092 in its published holdings, summary and full reasons, the current text of the cited articles of the Criminal Procedure Act, and the published holdings and summaries of the three cited decisions. The decision quotes the same words of Article 218 that appear in its holding.