Does a warrant naming computers and storage media reach information stored on a mobile phone? Supreme Court Decision 2024Mo2020 on strict construction of 'items to be seized'

Question

Article 114(1) of the Criminal Procedure Act requires a warrant for seizure and search to state, among other things, the items to be seized and the places, body and things to be searched, and Article 215(2) allows judicial police officers to apply, through a prosecutor's request, to a district court judge for a warrant limited to things recognised as related to the case, where circumstances arouse suspicion that the suspect committed the offence. Article 219 applies those provisions to seizures, searches and inspections by judicial police officers. The question is how strictly the words describing 'the items to be seized' must be read, and whether a warrant that names devices and storage media reaches electronic information stored on a mobile phone.

Decision 2024Mo2020 raises the question. Judicial police officers of Hongcheon Police Station were investigating the applicant, the party whose phone was seized, on suspicion of a violation of the Act on the Collection and Use of Donations, and on 22 May 2024 obtained a warrant from a judge of Chuncheon District Court whose 'items to be seized' were electronic information relating to accounting and meetings, relevant to the offence, stored in information processing devices (computers, notebooks, tablets and the like) and information storage media (USB devices, external hard drives and the like). On 23 May 2024 they seized the applicant's mobile phone under that warrant, and the applicant's counsel applied the same day for cancellation of the seizure and search. On 28 May 2024 the court below dismissed the application on the ground that the phone fell within the information processing devices or information storage media named in the warrant.

Material to check

The statutes are Article 12(1) and (3) of the Constitution, named in the decision's cited provisions, and Articles 114, 215 and 219 of the Criminal Procedure Act. Article 114(1) sets out what a warrant for seizure and search must state and be signed for, including the items to be seized and the places, body and things to be searched. Article 215(2) provides that judicial police officers may, where necessary for a criminal investigation, seize, search or inspect under a warrant issued by a district court judge on a prosecutor's request, on application by the police officer, limited to things recognised as related to the case where there are circumstances arousing suspicion that the suspect committed the offence. Article 219 applies, among others, Articles 106, 114 and 115 to seizures, searches and inspections by judicial police officers. The decision's reasons also state that Article 114(1) and Article 58 of the Criminal Procedure Rules require the reasons for the seizure and search to be recorded on the warrant.

The decisions are Decision 2024Mo2020 and the decision it cites, Decision 2008Do763 (12 March 2009). Decision 2008Do763 held that words written to specify 'the items to be seized' must be construed strictly and not expanded or construed by analogy to the detriment of the person subject to seizure, so that items recorded as 'kept at the place of seizure' could not be read as items 'present at the place of seizure'; it also concerned individual presentation of the warrant to each person present, prompt preparation and delivery of the list of seized items, and the exceptional use of evidence collected in breach of the procedures laid down by the Constitution and the Criminal Procedure Act, on the prosecutor's proof of special circumstances.

Possible readings

The first reading is the strict construction rule itself. In the light of the spirit of due process and the warrant requirement that the Constitution and the Criminal Procedure Act seek to embody, the wording a judge uses to specify 'the items to be seized' must be read strictly, and an expansive or analogous reading adverse to the person subject to seizure is not permitted. Decision 2008Do763 is cited by Decision 2024Mo2020 for that proposition.

The second reading concerns the object of the seizure. A mobile phone does have the characteristics of an information processing device or an information storage medium, but is basically a communications medium and is clearly distinguishable from computers, notebooks and the like as information processing devices, and from USB devices, external hard drives and the like as storage media. A mobile phone, and a smartphone in particular, accumulates a vast and wide-ranging body of information about the secrecy of communications and private life: calls, text messages, social media and other communications, personal schedules, internet search records, telephone numbers and location data. Electronic information stored on a mobile phone therefore differs markedly from that stored on a computer or a USB device in volume, content and character, and both the range of information obtainable through a search of the phone and the resulting degree of interference with fundamental rights are very different. It follows that where 'the items to be seized' do not include electronic information stored on a mobile phone, that information cannot be seized under the warrant unless special circumstances exist.

A third reading arises from the relatedness requirement. The decision states that relatedness between the items to be seized and the case appears as the principle of selective seizure at the stage of execution, under Articles 106(3) and 219 of the Criminal Procedure Act, and functions as a requirement for issuing the warrant at the issuance stage, under Article 215. On that footing the reasons for the seizure and search must be recorded under Article 114(1) and Article 58 of the Criminal Procedure Rules, and the investigating authority sets out in its application the relatedness to the case and the need for the measure.

What the decisions held

Decision 2024Mo2020 (25 September 2024) set aside the order of Chuncheon District Court of 28 May 2024 (2024Bo1) and remitted the case to that court for further argument and judgment. It held that the seizure and search of the applicant's mobile phone under the warrant was unlawful and should be cancelled, and that the court below had erred in law on the warrant requirement, the principle of due process and the specification of the items to be seized.

Applying the rule, the decision noted first that 'the items to be seized' recorded only electronic information stored in information processing devices (computers, notebooks, tablets and the like) and information storage media (USB devices, external hard drives and the like), and said nothing about electronic information stored on a mobile phone. Second, general warrants, which do not specify the object of the seizure and search and allow a blanket compulsory measure, are prohibited; that is why Articles 114 and 219 require the items to be seized and the places, body and things to be searched to be recorded. Reading the enumerated computers, notebooks, tablets, USB devices and external hard drives as including a mobile phone would allow the scope of the measure to be unduly enlarged by the investigating authority's own construction and would risk breaching the prohibition of general warrants, and the warrant application disclosed no unavoidable reason why the phone could not have been listed.

Third, the decision turned to relatedness. The application for the warrant contained no statement of relatedness between the phone and the case, and there was no material supporting relatedness, such as the applicant's use of the phone in the offence. The warrant judge could therefore not be taken to have examined the relatedness of the phone and the case before issuing the warrant, and it was difficult to read the phone as included in 'the items to be seized'. The court below had held that the phone was an information processing device or storage media within the wording of the warrant and dismissed the application; in doing so it misunderstood the law, with an effect on the judgment.

Points left open

The decision states the exception in the words 'unless special circumstances exist' but does not say what those circumstances are. It does not decide when, if ever, a warrant whose items to be seized name only computers and storage media might still be used to reach information on a mobile phone, and it does not say whether an express description of mobile phones is always required or what degree of detail suffices.

The decision also does not deal with the consequences of the unlawful seizure and search. Decision 2008Do763, which it cites, sets out the rule on evidence collected in breach of procedure and the prosecutor's burden to prove the concrete and special circumstances that would exceptionally allow its use, but Decision 2024Mo2020 did not apply that rule or decide the admissibility of anything obtained from the phone, leaving the matter to the court on remand.

When to reconsider

This brief changes if the judgment on remand defines the 'special circumstances' exception, if a later decision of the Supreme Court states when electronic information on a mobile phone is covered by a warrant's items to be seized or rules on the admissibility of such evidence, or if Article 114 of the Criminal Procedure Act or the Criminal Procedure Rules is amended to require mobile phones to be specified in warrants.

Statutes referred to

• 헌법 제12조
• 형사소송법 제114조, 제215조, 제219조

Decisions referred to

• 대법원 2024. 9. 25. 자 2024모2020 결정 · Decision ledger
• 대법원 2009. 3. 12. 선고 2008도763 판결 · Decision ledger

Verification status

The texts read for this brief were read at the National Law Information Center on 24 October 2026: Decision 2024Mo2020 (25 September 2024), with its published headnote, summary of holdings and full reasons, the current text of Articles 114, 215 and 219 of the Criminal Procedure Act, and the holdings and summary of Decision 2008Do763 (12 March 2009). Article 12(1) and (3) of the Constitution appears in the decision's cited provisions, but its text was not among the texts read for this brief.