Is It Illegal to Force a Search of Someone Else's Building Based Solely on an Arrest Warrant?

[Asia Economy Reporter Baek Kyunghwan] The court has ruled that police entering a building belonging to a third party without a search warrant, even if they have an arrest warrant, is illegal.

Recently, the Supreme Court acquitted former Kim Jeong-hoon, former chairman of the Korean Teachers and Education Workers Union, who was prosecuted for obstructing the police from arresting the leadership of the National Railway Workers' Union during the 2013 nationwide railway union strike.

He was indicted without detention the following year on charges of obstructing official duties by throwing glass shards when the police attempted to execute arrest warrants for the railway union leadership who were hiding in the Kyunghyang Shinmun building in Jung-gu, Seoul, where the headquarters of the Korean Confederation of Trade Unions is located.

However, the key issue in this case was whether the police's act of searching the Kyunghyang Shinmun building solely based on the arrest warrants for the railway union leadership was lawful.

The prosecution sought a three-year prison sentence for former Chairman Kim, but the first trial sentenced him to one year and six months in prison with a two-year probation. The court ruled that the police's entry into the Kyunghyang Shinmun building to execute the arrest warrants was lawful under the Criminal Procedure Act. Regarding former Chairman Kim's claim of self-defense against unlawful infringement, the court explained that "it is difficult to consider it a justifiable act aimed at preventing the execution of a lawfully issued arrest warrant."

The verdict was overturned to not guilty in the appellate court. The court judged that the police's search based solely on the arrest warrant without a search warrant could not be considered lawful official duty. This was due to former Chairman Kim's side requesting a constitutional review during the appeal, targeting Article 216 of the Criminal Procedure Act, which states that "when a prosecutor or judicial police officer executes an arrest warrant, they may search the residence or building of a third party without a warrant."

However, the Constitutional Court ruled that this provision allows searches without a warrant even when there are no urgent circumstances making it difficult to obtain a warrant beforehand, thus violating the "warrant principle exception" under Article 16 of the Constitution.

Accordingly, the second trial court stated, "Searches based solely on an arrest warrant are permissible only in urgent circumstances; otherwise, it is unconstitutional," and "therefore, all charges against former Chairman Kim, premised on lawful official duty, are acquitted."

The Supreme Court also upheld the appellate court's ruling, stating, "Since there were no urgent circumstances making it difficult to obtain a search warrant before searching the building, the police's search without a search warrant does not constitute lawful official duty, and thus the defendant is acquitted."

This content was produced with the assistance of AI translation services.