Criminal Procedure Act | Analysis of a Supreme Court Decision Holding That an Abandoned Article Seized Without a Warrant May Be Used as Evidence of Guilt in a Criminal Case

The person who raised the objection concerning the Criminal Procedure Act was A, who had been brought to trial on charges of violating the Act on the Protection of Children and Youth against Sexual Abuse.

The litigation arose as follows.

The police received a report from an acquaintance of A stating, “It appears that A secretly films the lower bodies of women who are together with him in his vehicle and then distributes the footage.”

After receiving the related photographs from the acquaintance and completing a witness interview, the police obtained a search and seizure warrant against A.

The warrant stated, “There is a need to clarify the evidence of the crime, namely that A used a mobile phone to secretly film women’s bodies and then distributed the footage.”

The police then went to the front of A’s residence, informed him that the warrant had been issued, and asked him to cooperate with a search of his vehicle.

While the police were waiting for A in the parking lot, they witnessed a shoe bag being dropped from one of the units, which was difficult to identify.

Inside the bag were a hard disk and an SSD card. Given the circumstances, it was most likely that A, who had received the phone call from the police, had dropped them.

The police asked A whether the shoe bag belonged to him, but A answered that it was not his.

A’s wife, however, said that the shoe bag was hers but that she did not know whose the contents found inside were.

The police seized the two storage media inside the bag as abandoned articles in this case.

During the subsequent analysis, the police discovered illegally filmed footage on the PC seized under the warrant and on the SSD card seized as an abandoned article, respectively.

The footage in question contained scenes of A having sexual intercourse with women while naked.

The prosecution, which took over the case, indicted A on charges that he had engaged in commercial sex acts with a minor and had illegally filmed the scenes of sexual intercourse with women.

However, the charge that had originally been reported by A’s acquaintance, namely that A had illegally filmed and distributed footage of the lower bodies of some women, was not applied.

The court of first instance, which conducted the hearing concerning the Criminal Procedure Act, found A guilty of the illegal filming charge.

It determined that the footage was indeed illegally filmed material recorded without the consent of the other parties.

However, as to the charge of commercial sex acts with a minor, it acquitted him on the ground that the statements of the minor victim lacked consistency.

The appellate court, however, reached a different determination.

It found that there was a serious problem with the evidence itself that the investigative authorities had collected.

First, at the time the police obtained the search and seizure warrant, A’s charge was that he had “secretly filmed women’s bodies inside his vehicle.”

However, the indictment was brought on the charge that he had “illegally filmed scenes of sexual intercourse,” and the illegally filmed material on the PC and SSD card submitted as evidence was likewise not photographs of women’s lower bodies but videos of sexual intercourse.

The appellate court stated that such material could be recognized as evidence of guilt only with respect to the crime related to the alleged facts that had served as the ground for issuing the warrant.

In other words, for the footage on the PC to serve as evidence of guilt, the investigative authorities should have obtained the search and seizure warrant on the charge that “A had illegally filmed scenes of sexual intercourse with women,” rather than the charge that “A had secretly filmed women’s lower bodies.”

The appellate court also determined that the admissibility of the “SSD card” as evidence could not be recognized.

It found that, in the course of examining the SSD card, A’s right to participate should have been guaranteed, and that if files unrelated to the alleged facts of this case were discovered, a separate search and seizure warrant should have been requested and obtained, but this was not done.

It pointed out that, although SSD card files that could hardly be regarded as related to the alleged facts were in fact discovered during the actual examination, A was not given an opportunity to express his views, nor was he given an opportunity to be furnished with a detailed list of the files obtained.

It further added that the files found on the SSD card, like the PC files, showed considerable differences in the persons filmed, the dates and times of the offenses, and the circumstances of the filming, and therefore could hardly be regarded as having a specific and individual connection with the alleged facts stated in the warrant.

As to the charge of commercial sex acts with a minor, however, the appellate court found the statements of the minor victim to be credible, reversed the lower judgment that had acquitted him, and found him guilty.

In the hearing concerning the Criminal Procedure Act, the Supreme Court reached a determination different from that of the appellate court.

The matter on which the Supreme Court took a different view was the admissibility of the “SSD card” as evidence.

The Court held that the Criminal Procedure Act does not require a warrant, either before or after the fact, in the course of seizing an “abandoned article,” and that seizure and search are therefore possible even where there is no clear connection with the defendant’s case.

It also explained that, in the case of an abandoned article, unlike an article seized under a warrant, it cannot be assumed that a “person subject to seizure” exists, and that the article therefore cannot be regarded as being limited in the object or scope of seizure, nor as requiring the participation of a person entitled to participate.

It added, however, that the lower court had erred by misapprehending the legal principles on the seizure of abandoned articles and thereby denying the admissibility of the SSD card files as evidence, and that this part of the case should be heard again.

We analyzed the Supreme Court decision holding that, in the case of an “abandoned article,” unless there are special circumstances in which the possessor has lost it and the investigative authorities could have sufficiently been aware of this, the article cannot be regarded as being limited in the object or scope of seizure, nor as requiring the participation of a person entitled to participate.

An “abandoned article” is a term meaning an object that someone has forgotten and left behind or has left in place, and in criminal litigation it can be interpreted as an object left at a place connected with a crime.

Through this decision, the Supreme Court once again made clear that, in the case of an abandoned article, Article 215 of the Criminal Procedure Act, which permits seizure, search, and verification only as to items having a connection with the relevant case, does not apply.

Even though an “abandoned article” may be key evidence that unlocks the case, in cases such as this one, where such evidence had been excluded from the evidence of guilt on the ground of a procedural problem, it appears that the matter may be reconsidered on appeal or in a final appeal.

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