미국 압수수색제도의 법리와 시사점에 대한 연구 : 플레인뷰 원칙과 독립적 긴급압수수색을 중심으로

다국어 초록 (Multilingual Abstract)

The first source of law of criminal procedure is The Fourth Amendment and through the precedents for a long time, very detailed legal principles have been developed. Although the supreme court has a strong preference for the warrants requirement to protect the privacy interests of citizens from improper search and hurried judgment of a law enforcement officer, in reality, most searches fall within the categories of warrant requirement exceptions.
To violate the privacy interests, there should be "trespass" into a constitutionally protected area. However, there have been changes regarding the meaning of the term "trespass". Until the early 20th century, the courts focused on whether the government has “actually physically” trespassed. However, some justices were beginning to recognize the threat posed by electronic surveillance devices which don't need to actually physically trespass.
In the Katz v. United States(1967) case, the Court made its first real effort to come to grips with the problems presented by advancing technology in the search context, ruling that it is clear that the Fourth Amendment of the Constitution protects persons and not areas from unreasonable searches and seizures.
Any law enforcement is authorized to apply for a search warrant by taking an application for a search warrant to a magistrate authorized by law to issue warrants. The application must include an attachment of one or more written affidavits, in such affidavits, the affiant must have sworn under oath to facts sufficient to establish probable cause to believe both that the items to be listed for seizure in the warrant are in fact evidence of specified criminal activity, and that these items are presently located at the premises for which the search warrant is being sought. In the warrant requirement exceptions situation. the probable cause is also needed to search and seize.
Comparing korean criminal procedure and U.S. criminal procedure law, we can find out that there are many similarities between both countries. Warrant requirements of both laws look alike naturally.
In the warrantless search, "search and seizure in the scene of arrest, confinement"((article 217-5-(1)(article 216-2) of the korean criminal procedure law) and "search and seizure of the property of emergently arrested person"(article 217-1 of the korean criminal procedure law) have the same legal principle with "search incident to arrest" of U.S. criminal procedure law. because these laws allow the police to search and seize the property without warrant when posing arrest and confinement.
"Seizure by voluntary submission"(article 108 of korean law) and "seizure without warrant"(article 218 of korean law) are similar to the "consent search" of U.S. law.
Finally, "search and seizure in the crime scene"(article 216-3 of korean law) is similar to the "plainview" of U.S. law. Both laws allow police to seize the property without arrest and warrant. The plainview is also similar to "the search and seizure with warrant" (article 215 of korean law). Because in plainview principle, the fact that the police may have a plainview of an item does not mean that they may necessarily seize that item as evidence. Unless the officer is already legally in a place where he can touch the item, the mere fact that he sees it will not despense with the need for a warrant to seize the item
Plainview is the theory we are debating to bring into our law system. We call it "independent emergent search and seizure" as korean term.
It can be defined as that when doing search and seizure pursuant to warrant, if the police see the incriminating item of other cases unrelated to the warrant or incriminating item which is not listed in the warrant, police can seize the item.
Now in korea, such item is not admitted by the korean criminal procedure law and the supreme court. because it violates the exclusionary rule(article 308-2 of korean law, enacted in 2007.6.1).
That's why some scholars in the korean law field have opinions that "independent emergent search and seizure" should be legislated to raise investigation efficiency and let the justice prevail. They also say that the contingency and emergency requirements should be added to "independent emergent search and seizure" to prevent the violation of privacy interest.
However, this thesis opposes the introduction of “independent emergent search and seizure” because there are critical differences between circumstances of the two countries’ investigations and the principles of law of both countries come from such a different environment respectively.
First, the Korean rules are stricter of the two countries as to warrant requirements.
Second, U.S. law allows the police to search and seize in much more broad field of the exceptions to search warrant requirement than the korean police’s investigation field.
Third, unlike the korean police’s working condition, U.S. police are on the duty on more dangerous condition, facing the threat of weapons, especially guns by suspects, I guess, which may have been letting the U.S. courts develop the theories on many exceptions to search warrant requirements.
In this situation, adopting the “independent emergent search and seizure” may cause the warrant to be the general warrant

목차 (Table of Contents)

• 제1장 서론 ························· 1
• 제1절 연구 배경 및 연구 목적 ·················1
• 제2절 연구 방법과 구성 ···················· 3
• 제2장 미국 형사소송법 상 압수수색의 법리 ····· 7
• 제1절 수정헌법의 보호법익 ·················· 7
• 1. 개관 ···························· 7
• 2. 프라이버시 침해에 대한 정의의 변화와 구체적 내용 ······ 7
• (1) 물리적 침입만을 프라이버시에 대한 침해로 보는 법리 ·····7
• (2) 프라이버시에 대한 합리적 기대의 침해 법리의 등장······ 9
• 제2절 영장에 의한 압수수색 ·················· 11
• 1. 개관 ····························11
• 2. 구체적 내용 ························ 11
• (1) 영장주의 우선의 원칙과 의견대립 ·············· 11
• (2) 상당한 이유 ·······················15
• (3) 특정성 ·························· 18
• (4) 영장 집행 ·························19
• 제3절 영장에 의하지 않는 압수수색 ··············20
• 1. 개관 ···························· 20
• 2. 구체적 내용 ·························21
• (1) 불심검문 ························· 21
• (2) 체포에 수반하는 수색 ··················· 23
• (3) 자동차 수색 ························29
• (4) 동의수색 ························· 32
• (5) 국경선 수색 ························ 33
• (6) 공개된 공간 ························ 35
• (7) 공립 학교 ························· 36
• (8) 재소자, 보호관찰 대상자, 가석방된 자 ············ 37
• (9) 약물 검사 ························· 39
• (10) 긴급 상황 ······················· · 41
• 제4절 미국 압수수색 제도에 대한 평가와 함의 ·········44
• 제3장 플레인뷰 원칙 ················· ·· 48
• 1. 개관 ···························· 48
• 2. 구체적 내용 ························ 49
• (1) 관측 장소의 적법성 요건·················· 49
• (2) 우연성 요건과 그 변화 ···················51
• 가. 우연성 요건이 폐지되기 전 법리 ··············51
• 나. 우연성 요건이 폐지된 현재의 법리 ·············54
• (3) 증거의 즉각적이고 명백한 존재 요건·············56
• 제4장 독립적 긴급 압수수색 ············· 58
• 제1절 독립적 긴급 압수수색에 대한 정의와 논의들 ····· 58
• 1. 개관 ··························· 58
• 2. 구체적 내용 ······················· 58
• (1) 독립적 긴급 압수수색 논의의 배경 ············ 58
• 가. 형사소송법 제 308조의 2 신설과 전원합의체 판결 ···· 58
• 나. 체포,구속 같은 대인적 강제처분과 별개의 긴급적
• 압수수색제도의 부재··················59
• (2) 독립적 긴급압수수색에 대한 정의 ··············60
• 가. 사전압수수색 영장에 기재되지 아니한 물건에 대한
• 압수수색······················60
• 나.‘독립적 긴급압수수색’에서‘독립적’의 의미에 대한 정의 · 60
• 다. 대인적 강제처분과 완전히 별개의 압수수색제도······ 61
• (3) 독립적 긴급압수수색에 대한 찬성과 반대 논의 ······· 61
• 가. 찬성 논의 ························61
• 가-1. 비교법적 관점과 입법미비를 근거로 한 찬성론 ······61
• 가-2. “긴급압수수색 범위의 지나친 제한”,“비례성 원칙 문제”
• 그리고“수사의 합리성과 정의관념”문제를 근거로 한
• 찬성론························63
• 가-3. 우리법의 입법미비를 근거로 한 찬성론과
• 우리법의 장점을 통한 보완론···············64
• 가-4. 독립적 긴급압수수색제도의 정당성과 구체적
• 조문화 방안······················65
• <표-1> 독립적 긴급압수수색의 입법화 방안으로
• 제215조 3항의 신설 ·················· 68
• 가-5. 특히 디지털 증거에 관한 구체적 찬성 주장········69
• 나. 반대 논의 ························ 70
• 제2절 우리나라 대법원 견해로 본 플레인뷰의 적용 여부검토·· 72
• 1. 대법원 2008도 10914 판결 ··················72
• 2. 대법원 2013 7101 판결 ····················72
• 3. 대법원 2011모 1839 결정 ··················· 73
• 제3절 독립적 긴급 압수수색에 대한 도입 여부 검토과
• 반대의견·························74
• <표-2> 미국에서 용의자의 중범죄로 사망한 경찰의 수와
• 그 원인 ························· 78
• 제5장 결론 ························· 81
• 참고문헌 ··························· 84
• Abstract ···························87