압수·수색의 목적외 유용에 관한 연구

Abstract

Pretextual search and seizure means the search and seizure that is used beyond its facial purpose. In cases of pretextual search and seizure, there are many types of concealed purposes, such as pre-restraint on publication, political public order, collection of information and preservation of chance evidence.

For the standard to decide whether pretextual search and seizure is legitimate, there is a sharp contrast between the subjectivism in which subjective intention of law enforcement is considered as an important factor and the objectivism in which objective circumstances should be solely taken into consideration. Although, based on objectivism, seach and seizure sometimes looks seemingly justifiable, in that they satisfy objective requirements, such as 'necessity,' pretexual purpose of law enforcement can not be easily accepted as legitimate with its' emphatic impropriety. Therefore, legitimacy of pretextual intention should be taken into consideration, based on objective circumstances as well as subjective intention of law enforcement.

In Korea, we have rare cases for pretextual search and seizure. In contrast, the United States and Japan accumulated a lot of cases regarding it. In Scott v. United Stated 436 U.S. 128 (1978) in which the 4th Amendment violation for an action of a police enforcement became an issue, the Supreme Court declared that objective assessment of an officer's action based on facts and circumstances that a police officer in a problematic context recognizes should be the true standard. Since then, the Supreme Court determined the issue of pretexual intention in many cases, such as United States v. Villamonte-Marques 462 U.S. 579 (1983), following Scott's rule. Like these examples, even though the Supreme Court, basically, relies on objectivism, it sometimes considered the factor of a police offier's subjective intention for exceptions, in cases like Maryland v. Garison, 480 U.S. 79 (1987).

In 1976, the Japanese Supreme Court decided that the seizure of items that are not specified in a warrant should be not merely prohibited but seizure of evidence that would be submitted to prove unspecified unlawful act ought to be also prohibited. Since the decision, the Supreme Court as well as many other lower courts have supported subjectivism. Some pretextual search and seizure can be blocked in the process of reviewing a warrant and also the tainted evidence regarding it should be inadmissible based on exclusionary rule.