Supreme Court: Investigation Started with Undiscarded Seized Items Constitutes Illegal Evidence Collection

Court: "Viewing unrelated information in seized items is a search without a warrant"

The Supreme Court has ruled that evidence collected through information extracted from seized items in a different case cannot be used as evidence in a criminal trial, even if a separate search warrant was issued.

The Supreme Court's First Division (Presiding Justice Park Jeong-hwa) announced on the 20th that it upheld the lower court's verdict acquitting Mr. A, who was indicted on charges including violation of the Military Secrets Protection Act.

Mr. A was indicted in 2017 on charges of leaking military secrets related to small military helicopters to Mr. Kim, who was engaged in defense industry-related trading.

The issue arose when it was confirmed that the key evidence used to prosecute Mr. A was material seized in 2014 by the Defense Security Command (DSC, formerly the Military Security Support Command) during an investigation of Mr. Kim for violating the Military Secrets Protection Act.

In July 2016, a DSC investigator, suspecting that an internal military official had leaked military secrets to Mr. Kim, borrowed the seized items stored at the Seoul Central District Prosecutors' Office. After identifying Mr. A's alleged involvement through the seized items, the investigator obtained a search warrant from the military court for the materials held by the Seoul Central District Prosecutors' Office and secured email records, among other evidence.

Both the first and second trials acquitted Mr. A. This was because unrelated information should have been deleted or discarded after the seizure related to the prior case was completed, but it was preserved as is and used as evidence in the trial, which was deemed illegal.

The Supreme Court agreed with the lower courts' judgment. The Court stated, "Viewing seized items containing unrelated information without a warrant is no different from searching electronic information seized without a warrant," and ruled that "it constitutes illegally obtained evidence, and even if a secondary warrant was issued, it remains illegal."

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