Illegally Obtained Evidence from Voluntarily Submitted Phone in South Korea

1. Is Seizing Unrelated Electronic Information from a Voluntarily Submitted Phone Illegally Obtained Evidence?

Conclusion: It May Constitute Illegally Obtained Evidence

Even in cases where a mobile phone is submitted through voluntary submission, seizing unrelated electronic information beyond the scope of the submitter’s intent constitutes illegally obtained evidence. This is because it violates the constitutional warrant requirement and the due process principle under the Criminal Procedure Act.

Information Storage Devices and Electronic Information Are Distinguished

According to Supreme Court precedents, information storage devices (mobile phones, USB drives, etc.) and the electronic information stored within them are conceptually and functionally separate entities with independent value and utility. Therefore, submitting a physical object such as a mobile phone does not automatically constitute consent to seizure of all electronic information within it.

The seizure of voluntarily submitted electronic information is lawful only to the extent that it is based on the submitter’s free submission intent. When voluntarily submitting an information storage device containing both electronic information related to criminal suspicion and electronic information not related to criminal suspicion, the submitter can individually designate or limit the scope of electronic information subject to submission and seizure.

Strict Interpretation of Submitter’s Intent

In light of the due process, warrant requirement, and proportionality principle that the Constitution and Criminal Procedure Act seek to realize, as well as the importance of electronic information within information storage devices from the perspective of protecting privacy, informational self-determination rights, and property rights, expressions of intent by a person voluntarily submitting an information storage device to designate or limit the scope of electronic information therein must be strictly interpreted.

Investigators are not permitted to arbitrarily presume the submitter’s unconfirmed intent. Therefore, when investigators receive voluntary submission of an information storage device containing electronic information both related and unrelated to a specific criminal suspicion without confirming the submitter’s intent when such confirmation was readily available, the entire electronic information stored on that information storage device cannot be treated as having been voluntarily submitted and seized.

2. What Are the Criteria for Interpreting the Submitter’s Intent in Voluntary Submission?

Comprehensive and Strict Judgment Is Required

When interpreting the voluntary submitter’s intent regarding the scope of electronic information submission, the following factors must be comprehensively considered, and such intent must be strictly interpreted.

First, the content of the case under investigation at the time. What criminal suspicion was being investigated at the time of submission serves as the basis for determining the scope of submission.

Second, the expected future investigation situation. Consideration is given to how the submitter expected the investigation to proceed in the future.

Third, the content of the electronic information. Whether the submitter specifically recognized the content of the electronic information in the mobile phone is important.

Fourth, whether there was willingness to accept disadvantages or risks resulting from submission. Consideration is given to whether there was willingness to accept risks such as oneself or third parties being investigated or punished.

3. Why Is Electronic Information Seizure Beyond the Scope of Voluntary Submission Illegal?

The Subject of Seizure Is Limited to Electronic Information Related to Criminal Suspicion

Under Articles 219 and 106 of the Criminal Procedure Act, investigators may seize only items that can be recognized as related to the suspected facts, limited to evidence or items deemed subject to confiscation. Therefore, when investigators seeking to seize electronic information seize information storage devices and electronic information stored therein through voluntary submission, if the subject and scope of electronic information seizure according to the voluntary submitter’s intent is unclear or cannot be determined due to failure to properly confirm the submitter’s specific intent regarding the scope of submission, only electronic information related to and having minimal value in proving the criminal suspicion that motivated the seizure through voluntary submission is subject to seizure.

The Meaning of ‘Relevance’ Here

Electronic information related to criminal suspicion includes not only information directly related to the criminal suspicion itself or offenses with the same basic factual relationship, but may also include information that can be used as indirect or circumstantial evidence to prove the motive and circumstances of the offense, means and methods of the offense, and time and place of the offense.

However, such relevance is recognized only when there is a specific and individual connection considering the content of the criminal suspicion that motivated the seizure through voluntary submission, the subject of investigation, the circumstances of investigation, and the process of voluntary submission. Relevance cannot be found merely because the offense is of the same type or similar to the criminal suspicion (see Supreme Court Decision 2021Do2205, August 26, 2021, etc.).

4. What Should Investigators Do When They Discover Unrelated Electronic Information?

Search Must Be Stopped and Separate Warrant Obtained

Investigators arbitrarily searching, copying, or printing electronic information beyond the scope subject to seizure from voluntarily submitted information storage devices constitutes illegal search and seizure in principle and is not permitted.

If electronic information related to a separate criminal suspicion is discovered incidentally while lawfully searching electronic information related to the criminal suspicion before the completion of search and seizure of electronic information, investigators must stop additional searching and may only lawfully search and seize such information after obtaining a separate search and seizure warrant for the separate criminal suspicion from the court (see Supreme Court Decision 2011Mo1839 (en banc), July 16, 2015, etc.).

Investigators’ Obligations

The purpose of requiring relevance in search and seizure of electronic information and likewise requiring the same for seizure of voluntarily submitted items, and the Supreme Court precedent requiring investigators receiving voluntary submission to clearly confirm the intent regarding the scope of submission, was already established at the time of investigation in this case. Therefore, procedures according to these legal principles must be followed despite investigative difficulties.

Furthermore, according to the Supreme Prosecutors’ Office regulation “Regulations on Collection, Analysis, and Management of Digital Evidence,” digital evidence must be disposed of when “it is confirmed during the investigation process to be unrelated to the criminal facts” or “there is no longer a need for continued storage due to final disposition such as indictment or non-indictment in the case that was the cause of seizure.”

5. What Effects Occur When Illegally Obtained Evidence Is Recognized?

Exclusion of Admissibility

Under Article 308-2 of the Criminal Procedure Act, evidence collected without following proper procedures cannot be used as evidence. Evidence collected by investigators without following procedures prescribed by the Constitution and Criminal Procedure Act, as well as secondary evidence obtained based thereon, in principle cannot be used as evidence for conviction.

Exclusion of Secondary Evidence

Admissibility is also excluded in principle for secondary evidence obtained based on illegally collected primary evidence. However, if the investigators’ procedural violation does not constitute a case of infringing on the substantial content of due process, and rather excluding the admissibility of that evidence would be evaluated as producing a result contrary to the purpose of harmonizing due process principle and discovery of substantive truth through establishing procedural provisions regarding criminal proceedings in the Constitution and Criminal Procedure Act and thereby realizing criminal justice, the court may use that evidence as evidence for conviction in such exceptional cases (see Supreme Court Decision 2020Do3050, April 16, 2024, etc.).

Criteria for Judging Admissibility of Secondary Evidence

When the court finally determines whether to admit secondary evidence, it must first examine all circumstances related to the collection of primary evidence that did not follow procedures—namely, the purpose of the procedural provision and the content and degree of violation, the specific circumstances and avoidability of the violation, the nature and degree of infringement of rights or legal interests the procedural provision seeks to protect and relation to the defendant, the degree of relevance including causal relationship between the procedural violation and evidence collection, and the investigators’ awareness and intent—and furthermore, comprehensively and holistically consider all circumstances that additionally arose in the process of collecting secondary evidence based on primary evidence, primarily focusing on whether the causal relationship is diluted or severed according to the specific case.

6. Atlas Legal Acquittal Case Analysis

※ This case is based on an actual acquittal case, but some facts have been adapted to aid understanding, and the personal information of the parties has been protected.

Background of the Case

Third party Mr. A voluntarily submitted three mobile phones to investigators in connection with a specific case in which he was being investigated as a suspect. Mr. A submitted them on the premise that they would only be used as evidence for the case under investigation at the time, and the voluntary submission consent form also stated, “I consent to voluntarily submitting items in connection with this case until the completion of this investigation.”

However, the prosecution extracted call recordings, text messages, KakaoTalk messages, and Telegram messages related to alleged bribery in the case in question from the three mobile phones and indicted National Assembly members based on this evidence.

First Trial Judgment and Appeal

The first trial court found the defendants guilty. Accordingly, Atlas Legal appealed, making exclusion of illegally obtained evidence the core issue.

Atlas Legal’s Defense Strategy

Atlas Legal intensively argued the following points.

First, Mr. A never clearly expressed an intent to submit all electronic information within the three mobile phones. Mr. A expressed an intent to submit only electronic information related to the case he was being investigated for at the time.

Second, at the time Mr. A submitted the mobile phones, no one could have anticipated that the case in question would become a subject of investigation. The case in question was a completely separate offense from Mr. A’s original case in terms of timing, location, motive, content, and method of the alleged crime.

Third, the prosecutor presumed without basis that the intent was to submit all electronic information without clearly confirming Mr. A’s intent. This violates the constitutional and Criminal Procedure Act warrant requirement, due process principle, and proportionality principle.

Fourth, such action by the prosecutor not only violates the constitutional and Criminal Procedure Act warrant requirement, due process principle, and proportionality principle, but also violates Article 198(4) of the Criminal Procedure Act, which provides that “evidence or materials obtained through investigation of another case shall not be used to coerce confession or statements regarding an unrelated case.” The procedural defect is not only serious but constitutes a case of infringing on the substantial content of due process.

Appellate Court’s Judgment

The appellate court fully accepted Atlas Legal’s arguments. The court determined that the evidence submitted by the prosecutor alone was insufficient to recognize that Mr. A clearly expressed an intent to submit all electronic information within the three mobile phones including evidence for the case in question, and there was no other evidence to recognize this.

Furthermore, the court determined that the unrelated electronic information extracted from Mr. A’s mobile phones was illegally collected evidence without admissibility, and secondary evidence based thereon likewise had its admissibility excluded.

Final Result: Complete Acquittal

As a result of excluding illegally obtained evidence and secondary evidence based thereon, the remaining admissible evidence alone was insufficient to prove the charges in this case, and there was no other evidence to recognize them, so acquittal was rendered for all defendants.

This case is an important example confirming the legal principle that the scope of submitter’s intent must be strictly interpreted in seizure of electronic information through voluntary submission. Atlas Legal accurately applied the legal principles of illegally obtained evidence exclusion and obtained acquittal for the clients in this case.

7. Defense Strategies for Exclusion of Illegally Obtained Evidence

Analysis of the Scope of Submitter’s Intent

To claim exclusion of illegally obtained evidence, one must first carefully analyze what scope of electronic information the submitter expressed intent to submit at the time of voluntary submission. The contents of voluntary submission consent forms, seizure records, and suspect interrogation records must be thoroughly reviewed, and the investigation situation at the time and the submitter’s specific awareness must be ascertained.

Review of Relevance Between Seized Electronic Information and Original Charges

It must be examined whether the seized electronic information is relevant to the criminal suspicion that originally motivated the voluntary submission. The timing, location, motive, content, and method of the offense are compared to examine whether there is a specific and individual connection. Mere similarity or same type of offense does not establish relevance.

Proof of Investigators’ Procedural Violations

It must be confirmed whether investigators seized all electronic information without clearly confirming the submitter’s intent, and whether they stopped additional searching and obtained a separate warrant when discovering unrelated electronic information. Forensic procedure records, attendance confirmation documents, and seizure lists are analyzed.

Analysis of Causal Relationship with Secondary Evidence

Secondary evidence (statement records, witness statements, etc.) obtained based on electronic information recognized as illegally obtained is identified, and it is analyzed whether this evidence has a causal relationship with the illegally obtained evidence. If the causal relationship is not diluted or severed, secondary evidence is also excluded.

Emphasis on the Seriousness of Due Process Violations

It is emphasized that the investigators’ procedural violation constitutes a case of infringing on the substantial content of due process. In particular, violations of Article 198(4) of the Criminal Procedure Act prohibiting misuse of evidence from other cases, violations of the warrant requirement, and violations of the proportionality principle are argued.

8. FAQ

Atlas Legal provides legal services in the areas of corporate expertise, corporate disputes, corporate advisory, and corporate crimes (fraud, breach of trust, embezzlement, tax law, customs law) in Songdo, Incheon. We recently obtained acquittal in a case involving indicted National Assembly members by having the court recognize that electronic information extracted from voluntarily submitted mobile phones constituted illegally obtained evidence. This is an example of accurately applying the legal principle that the scope of submitter’s intent must be strictly interpreted in seizure of electronic information through voluntary submission to restore clients’ rights. We have professional advisory and litigation representation experience in complex criminal issues such as digital forensics, electronic information search and seizure, and exclusion of illegally obtained evidence.

※ The case introduced in this article is based on an actual acquittal case, but some facts have been adapted to aid understanding, and the personal information of the parties has been protected.