The Execution of Seizure and Search in South Korea: Recent Precedent and Principles
1. Overview
Seizure and search is a compulsory measure by which an investigative agency forcibly acquires an item of evidence or an object to be confiscated, or searches a particular place, and the warrant-requirement principle under the Constitution and the Criminal Procedure Act applies. A prosecutor or judicial police officer may seize and search—by a warrant issued by the court—limited to what there are circumstances to suspect the suspect committed the offense and what can be recognized as related to the relevant case (Criminal Procedure Act, Article 215(1), (2)).
Below, recent cases are organized by type, with the principles on each issue explained alongside.
2. Recent Key Cases
A. The scope of, and relevance in, the seizure and search of electronic information
1) Daegu High Court, July 17, 2024, 2024no271 (filming using a camera, etc. / distribution, etc.). After the police obtained a seizure-search-verification warrant for the suspected offense against victim B (a pseudonym) and seized the defendant’s mobile phone and the like, they found, during digital forensics, evidence of an offense against an unnamed victim clearly unrelated to the suspected facts stated in the warrant. The court judged: the warrant stated only the offense against victim B (a pseudonym), and did not include the necessity of investigating additional further offenses; the police, although recognizing around June 22, 2023 that electronic information unrelated to the warrant’s criminal facts was included, seized all of that electronic information without taking any particular measure; this amounted to an unlawful seizure and search, and so the electronic information was inadmissible.
2) Seoul Central District Court, Jan. 15, 2025, 2024no2768 (filming using a camera, etc. / distribution, etc.). While seizing and searching a mobile phone under a first warrant in the course of investigating the defendant’s separate-case rape-injury matter, the video material of this case (unlawfully filmed material) was found. The court judged: the officer, immediately upon finding the video material, halted the search and separately obtained and executed a second seizure-and-search warrant; the procedure—whether the video material was electronic information whose relevance to the first warrant’s suspected facts is recognized, or, even if not, halting the search and then obtaining and executing a separate warrant—was lawful.
3) Suwon District Court, Jan. 13, 2025, 2024no2446 (leakage of trade secrets, etc.). The investigative agency, at the time of the seizure and search, removed the original of a storage medium such as an external hard disk without a procedure of searching the medium, did not deliver a detailed list of the electronic information even after the search was completed, and did not halt the search even upon finding emails unrelated to the warrant’s suspected facts. The court judged: the agency, having found emails unrelated to the warrant’s suspected facts, should have halted further search and obtained a separate seizure-and-search warrant; such a procedural violation existed, and there being no exceptional circumstance warranting recognition of admissibility despite the unlawful collection, the evidence was inadmissible.
B. The guarantee of the participation right
1) Supreme Court, Oct. 8, 2024, 2020do11223 (violation of the Act on the Control of Narcotics, etc. (cannabis)). The investigative agency, in executing a seizure-search-verification warrant, had only the suspect (a non-indicted person) participate, and did not take the measure of having a neighbor or the like participate under Article 123(3) of the Criminal Procedure Act. The Supreme Court judged: the agency had only the non-indicted person participate and did not take measures such as having a neighbor participate; the seizure and search is therefore highly likely to be unlawful, and the evidence secured through it amounts to unlawfully collected evidence whose admissibility is hard to recognize.
2) Supreme Court, Dec. 24, 2024, 2022do2071 (obstruction of business). While the police executed a seizure-search-verification warrant in a high-school principal’s office, they did not present the warrant to the defendants (aged 16) or guarantee them an opportunity to participate. The court judged: the defendants were actually controlling and managing the mobile phone, exercising the right of management and disposal over the electronic information generally; and because the seizure and search was also part of the investigation into the defendants’ suspected offense, the participation right should have been guaranteed to them.
3) Supreme Court, Apr. 24, 2025, 2024do19106 (filming using a camera, etc. / distribution, etc.). The court reaffirmed the principle that, even where a storage medium is removed to the investigative agency’s office to be duplicated, searched, and printed out, one must observe the warrant-requirement principle and due process—guaranteeing the person whose property was seized, or counsel, an opportunity to participate, and taking appropriate measures to prevent the arbitrary duplication of electronic information unrelated to the suspected facts.
C. Seizure and search at the scene of an emergency arrest
1) Seoul Western District Court, Jan. 9, 2024, 2023no1040 (violation of the Act on the Control of Narcotics, etc. (psychotropic drugs)). After methamphetamine was found during a search of the body and vehicle with the defendant’s consent, leading to a flagrant-offender arrest, an after-the-fact warrant was obtained within 48 hours of the arrest. The court judged there was no unlawfulness in the flagrant-offender arrest or the seizure.
2) Busan District Court, Aug. 11, 2023, 2023no1302 (violation of the Act on the Control of Narcotics, etc., etc.). After a flagrant-offender arrest on suspicion of violating the Road Traffic Act, evidence of a separate-case drug offense was seized without a warrant. The court judged: seizure and search incident to a flagrant-offender arrest is limited to items of evidence for the relevant suspected facts; even for a separate case, warrantless seizure and search is possible if the separate case itself meets the requirements for arrest of a flagrant offender or corresponds to a crime scene during or immediately after the offense, in which case a request for and issuance of an after-the-fact warrant treating the separate case as the criminal facts is needed; in this case those requirements were not met, so the seized item amounted to unlawfully collected evidence.
D. Obstructing the execution of a seizure and search (obstruction of official duties)
Daegu District Court, July 16, 2024, 2023godan3363, 3860 (consolidated) (obstruction of official duties, bodily injury). When officers tried to execute a seizure-search-verification warrant by presenting it, the defendant refused and fled, and bit an officer’s arm during the emergency-arrest process. The court sentenced the defendant to 1 year 6 months’ imprisonment.
3. The Principles
A. The warrant-requirement principle and the relevance requirement
Seizure and search must in principle be by a warrant issued by the court, and the objects that may be seized and searched by a warrant are limited to “what can be recognized as related to the relevant case” (Criminal Procedure Act, Article 215(1)). Here, “what can be recognized as related to the relevant case” means a case in which objective relevance to the warrant’s suspected criminal facts is recognized, and there is personal relevance between the warrant’s subject and the suspect (Supreme Court, Aug. 26, 2021, 2021do2205).
B. Special rules for the seizure and search of electronic information
The following principles are established for the seizure and search of electronic information.
| Principle | Content |
|---|---|
| On-scene selection principle | Removing the storage medium itself or making a duplicate is permitted only exceptionally |
| Relevance-limitation principle | Searching, duplicating, or printing out electronic information unrelated to the suspected facts, beyond the related electronic information, is in principle unlawful |
| Duty to halt the search | Where electronic information related to a separate criminal suspicion is incidentally found during a lawful search, one must halt further search and obtain a separate warrant |
| Guarantee of the participation right | The person whose property was seized, or counsel, must be guaranteed an opportunity to participate; counsel’s participation right must be guaranteed separately even where the person whose property was seized manifests an intent to waive participation |
| Delivery of a detailed list of electronic information | A detailed list of the seized electronic information must be delivered to the person whose property was seized |
C. The exclusionary rule and secondary evidence
Evidence collected through an unlawful seizure and search is in principle inadmissible, and secondary evidence obtained on its basis is also inadmissible unless the causal connection is diluted or severed. That said, the procedural unlawfulness of the preceding seizure and search is not automatically resolved merely because a second warrant was obtained and executed (Seoul Central District Court, May 2, 2024, 2024no516).
D. The permitted scope of warrantless seizure and search
The exceptional cases in which warrantless seizure and search is permitted are as follows.
- Upon arrest of a flagrant offender: at the arrest scene, warrantless seizure and search is possible limited to items of evidence related to the relevant suspected facts (Criminal Procedure Act, Article 216(1)).
- Upon emergency arrest: warrantless seizure and search of items possessed or kept by the emergency-arrested person is possible, but an after-the-fact warrant must be requested within 48 hours (Criminal Procedure Act, Article 217(2)).
- Where urgency is required: advance notice to the person entitled to participate may be omitted, but this means a case where giving advance notice of the seizure-and-search execution would make the purpose of the seizure and search unachievable due to destruction of evidence or the like.
E. Specification of the seizure-and-search place
The investigative agency must, when requesting a seizure-and-search warrant, specify the place as much as possible; but considering that the internal structure of the place cannot be clearly known in advance, within the scope where identity with the place stated in the warrant is recognized as ordinarily viewed—on the basis of the suspect, the criminal facts, and the reason the seizure and search is needed—it can be regarded as the place stated in the warrant (Gwangju High Court, Jan. 15, 2008, 2007no370).
4. Practical Implications
Taking the flow of recent precedent together, the courts show a clear trend of strictly examining procedural requirements—the relevance principle, the guarantee of the participation right, the delivery of a detailed list of electronic information, and the like—in the seizure and search of electronic information. In particular, the following are established as key requirements of a lawful seizure and search: (1) the procedure of immediately halting the search and obtaining a separate warrant when electronic information unrelated to the warrant’s suspected facts is found; (2) the procedure of separately guaranteeing the participation right of the person whose property was seized and of counsel, including in the search process after a storage medium is removed; and (3) the procedure of delivering a detailed list of electronic information without delay.
Thanks for reading!
KLAWGURU.COM 