Legality of Re-Confiscation toward Duplicate of Electronic Information which is an Output of the Ended Search and Confiscation of the Investigative Agency : Supreme Court Decision 2018Do19782 delivered on June 1, 2023

In the targeted precedent of the thesis, the Defense Security Command(DSC) first confiscated electronic information with a legitimate warrant. However, the prosecution stored the confiscated information even after conviction and forfeiture were fixed. While storing the data, a DSC investigator borrowed the information from the prosecution, searched it, and found related information(e-mail records) regarding another crime. Then, he re-confiscated the records with another warrant. The issue was the admissibility of re-confiscated records by the DSC investigator. Several things need to be examined to judge the admissibility. Firstly, as the electronic information was confiscated by DSC and then stored by the prosecution, whether the confiscated information could be searched and used as evidence became an issue. Thus, the theory of relevance in search and confiscation, and if the theory of relevance is applied to the usage of evidence were examined. Secondly, whether it is illegal that the prosecution did not delete and discard irrelevant parts of the electronic information even after conviction and forfeiture of the antecedent case were fixed was questioned. Therefore, the occurrence moment of the obligation of the investigative agency to delete and discard irrelevant parts was also examined. Lastly, although the records were ‘illegally obtained evidence’ due to the process above, whether ‘the good faith of exception doctrine’ toward the confiscated e-mail records can be applied was also examined. In this thesis, the issues above were reviewed in sequence. Relevance of the e-mail records is admitted. However, the re-confiscation of the DSC investigator is illegal, as the investigator borrowed the whole duplicated electronic information which includes irrelevant information from the prosecution, even after the ‘search and confiscation’ process ended and conviction and forfeiture were fixed. Moreover, it is illegal for the prosecution not to delete and discard confiscated information even though they no longer need to preserve the duplicated one. Considering it is acknowledged by related laws and precedents that electronic information can only be confiscated by printing or duplicating relevant information and irrelevant information must be deleted and discarded when the necessity to store disappears, it is hard to see that the DSC investigator checked related laws, precedents, and practice guidelines in detail. The conclusion of the targeted precedent seems agreeable as there is no sufficient objective and rational basis that the DSC investigator trusted the ‘search and confiscation’ to be legal and therefore at least gross negligence of the DSC investigator can be recognized. Crime usually happens one after another. When confiscating electronic information, it is hardly possible to extract and duplicate all the related evidence during the execution period of the warrant. In addition, it is unavoidable to re-confiscate duplicated electronic information as there is a high possibility that the defendant deleted the original one from the returned device. Moreover, finding substantial truth is also the important ideology of criminal procedure law as due process is. Contemplating all the above factors, ‘the good faith of exception doctrine’ needs to be actively applied to the confiscation of electronic information unless it invalidates the exclusionary rule.