If Detained After Voluntary Accompaniment, "Submitted Mobile Phone Also Has Evidentiary Value"

The lower court ruled that if the police arrested a suspect after voluntarily accompanying the suspect to the police box and deemed an urgent arrest necessary, the mobile phone seized after voluntary submission can be recognized as evidence.

Judge Kim Bora of the Criminal Division 13 at the Seoul Northern District Court sentenced Mr. A, who was indicted on charges including fraud and forgery of private documents, to two years in prison on November 20, 2024 (Case No. 2023Godan2668).

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[Facts]

Mr. A is accused of participating in a voice phishing crime by taking on the role of a cash collector after receiving a proposal from a voice phishing organization member he met through social networking services (SNS) in August 2022, who offered to give him a portion of the collected money if he met customers and collected money.

On September 2, 2022, Mr. A was stacking cash and making a transfer at an ATM of a bank in Gyeongju, Gyeongbuk Province, when the police, who arrived on the scene, requested voluntary accompaniment to the police box. The police who requested the voluntary accompaniment explained to Mr. A, "We only plan to investigate, and you can leave anytime later. We will just confirm the damage and whether you are a supplier at the police box and then let you go."

Mr. A wrote and signed a voluntary accompaniment consent form at the police box. The consent form stated that "I was informed by the police officer that I could refuse voluntary accompaniment and freely leave, and I voluntarily agreed to accompany." Mr. A voluntarily submitted his mobile phone to the police at the police box.

After the voluntary accompaniment, due to the necessity of an urgent arrest, Mr. A was urgently arrested by the police. Mr. A’s side argued in court that "the police did not inform Mr. A that he could freely leave at any time during the voluntary accompaniment to the police station, so it should be considered illegal detention, and all evidence submitted and collected during that process has no evidentiary value." They also claimed that it was difficult to see that the police met the urgency requirements at the time of the urgent arrest, so all evidence collected based on the urgent arrest should be considered inadmissible.

[Court’s Judgment]

Judge Kim did not accept Mr. A’s claims. The voluntary accompaniment to the police box was carried out based on Mr. A’s voluntary intention, and since Mr. A was free to leave or withdraw during the accompaniment, the lawful voluntary accompaniment procedure under the Criminal Procedure Act was followed.

Judge Kim stated, "Although it appears that the police prevented Mr. A from leaving the police box after arrival, this does not mean that the previously conducted voluntary accompaniment was illegal."

After arriving at the police box, circumstances changed such as the Telegram chat room of the voice phishing organization members on Mr. A’s mobile phone being deleted and damage confirmation from the victim, increasing the necessity to arrest Mr. A. During the series of urgent arrest procedures, the police had no choice but to prevent Mr. A from leaving.

At that time, it was investigated that Mr. A, upon learning that a voice phishing victim who had been contacted was coming from Yeongcheon to Gyeongju, shouted inside the police box and tried twice to leave the police box. Accordingly, the police urgently arrested Mr. A, informing him of the Miranda rights including the right to remain silent, the opportunity to explain, and the right to appoint a lawyer, stating that he was arrested on suspicion of being a voice phishing cash collector and due to concerns about evidence destruction.

Judge Kim said, "At that time, it seems the police judged that if they did not immediately arrest Mr. A, there was a risk of evidence destruction or flight, and this judgment does not appear to be irrational based on experience. It is reasonable to see that both the voluntary accompaniment and urgent arrest of Mr. A were lawfully conducted, and the defense’s claim that the evidence submitted to the court regarding the charges was illegally collected during unlawful voluntary accompaniment and urgent arrest is rejected."

Regarding the seizure of the mobile phone, the judge also stated, "Although the seizure report records 'voluntary submission,' the seizure was conducted after the urgent arrest and is essentially an urgent seizure. The prosecutor in charge requested a warrant the day after the urgent seizure on September 3, 2023, and it appears that the warrant was issued around that time. Therefore, the seizure procedure is not considered illegal."

Hong Yoonji, Legal News Reporter

※This article is based on content supplied by Law Times.