Emily Chueh
The Supreme Court rendered the 109-Tai-Shang-259 Decision of February 13, 2020 (hereinafter, the “Decision”), holding that if the voluntary consent which is given to a search by the person subject to the search is withdrawn, the search shall stop. Even if it is necessary to continue the search since suspicious evidence is detected, still the search may continue only when there is another lawful channel.
According to the facts underlying this Decision, the Defendant was obviously aware that modified pistols which can fire bullets and have lethal effect as well as bullets are contrabands prohibited under the Guns, Ammunition and Knives Control Law and could not be possessed without the permission of the central competent authority. Since the Defendant intended to possess them for purposes of collection and self-defense, he purchased a modified pistol which can fire bullets and have lethal effect and bullets with lethal effect from Individual A, not a party to the litigation, and kept them in his residence. Later, the police searched his residence with a search warrant and seized the above modified pistol and bullets. The original trial court upheld the first instance decision, which found the Appellant guilty of committing an offense of illegally possessing a firearm which can fire bullets with lethal effect.
According to the Decision, the first part of Article 131-1 of the Code of Criminal Procedure provides that if the person subject to a search voluntarily consents to the search, a search warrant may be waived. Therefore, the legality of the consent to a search is based on the willingness of the person subject to the search who is clearly aware of the right to refuse the search to give up his/her fundamental rights such as privacy, property rights and right of abode, which are protected under the Constitution, based on his/her free will. Since the consent of the person subject to the search is the most important precondition for a lawful search, a search certainly cannot be conducted without the consent of person subject to the search with the scope and duration of the search also determined by the will of the searched person. Therefore, a searched person may withdraw the consent at any time; and the manner of withdrawal can include express or other means that allow the officers performing the search to understand and know the indication of the intent. When the consent is withdrawn, the search should stop immediately. Even if it is necessary to continue the search or seize evidence on the spot due to the detection of suspicious evidence, such search can continue only in another lawful channel such as emergency search, ancillary seizure to the case or seizure for another case.
It was further indicated in the Decision that the letter of consent signed by the Appellant to indicate his voluntary consent to the search only indicated the date, not the point in time, with respect to the time of the search that was consented. An observation of the inspection record of the video disc for the search suggests that there was no footage showing the Appellant’s voluntary consent to the search after the search personnel entered the searched premises until the end of the search on that day. In addition, there is also no other data sufficient to conclude the search time consented by the Appellant voluntarily. As a result, it was no longer possible to determine if the Appellant voluntarily consented to the search before, in the middle of, or after the search. In addition, the inspection record shows that the search personnel continuously rummaged the Defendant’s room and asked the Appellant if there was still any other article. After denying, the Appellant started to become emotional. The search personnel calmed the Appellant down and asked him if an ambulance was needed, while continuing the search until the pistol and bullets were retrieved from a storage box. The Appellant’s voluntary consent to the search in this case was given before the search. However, the above conversation in the course of the search calls into question if it can be objectively concluded that the Appellant intended to request that the search be stopped and the consent be withdrawn. Since this has a vital impact on the determination of a fact to be verified concerning whether the continued search and seizure of the pistol and bullets in this case violated the legal procedure, this issue is worthy of further exploration. The original trial court elected to render a decision unfavorable to the Appellant based on the pistol and bullets seized as a result without carefully clarifying if the Appellant’s voluntary consent to the search was given before the search and was withdrawn in the course of the search. Therefore, the trial court violated the law for failure to conduct sufficient verification.