Bar Exam and Preliminary Exam Preparation: Criminal Procedure Law (33) | Organizing the Permissible Scope of Searches Based on Privacy Inclusion Relationships in Exam Answer Formats

Does a warrant for a company office as the search location extend to the personal belongings of employees working there? While many examinees know the articles for search and seizure (Articles 218 and 219 of the Code of Criminal Procedure), they struggle to persuasively demonstrate in their answers to what extent the effect of a warrant for a location extends to 'objects' placed there or 'persons' present.

This article organizes the answer format for the permissible scope of searches, using the 2012 (Heisei 24) Bar Exam Criminal Law Series Question 2 (Criminal Procedure Law) (a case where a search was conducted based on a warrant for a company office as the search location for the suspected fact of violating the Stimulants Control Act) as source material.

Why this issue is important

・Under the warrant requirement (Article 35 of the Constitution), the principle is that the subject of a search is examined separately for each 'location,' 'object,' and 'body' specified in the warrant, and a theoretical explanation is required for why a warrant for a location allows for the search of objects placed there or persons present. ・As in this question, whether personal belongings (luggage) of employees present can be searched under a warrant for a 'location' such as a company office is a frequently appearing applied issue. ・The perspective of 'privacy inclusion relationships' is a typical thinking framework for discussing the purpose of the warrant requirement (judicial protection of privacy), and how this understanding is expressed in an answer makes a difference.

Conclusion/Key Points of Norms (Must grasp these)

・A search is a compulsory measure conducted on a specific location, object, or person's body for the purpose of discovering objects or persons. ・Under the warrant requirement (Article 35 of the Constitution), searches and seizures must, in principle, be based on a warrant that specifies the location, body, or object to be searched (Article 219, Paragraph 1 of the Code of Criminal Procedure). ・Regarding

objects placed at the search location, for objects that are naturally expected to be at the search location, the privacy interest in that object is included in that of the location, and it is interpreted that it can be searched by a search warrant for the location. ・Regarding personal effects of persons present at the search location
, this logic does not apply if the object is not placed at the location but was merely being carried by a person present. ・Regarding the body of a person present at the search location
, since the privacy interest in the body is worthy of protection independently of the privacy of the location, it is interpreted that a search is not automatically permitted by a warrant for the location.

This is the basic framework for the permissible scope of searches. From here on, I will show the format for applying this to employee luggage in a company office and how to write it in an answer.

――The following is the paid section―― (What makes a difference in answers for this issue is not just writing the conclusion that 'objects can also be searched with a warrant for a location,' but whether one can examine whether the object is in an inclusion relationship with the privacy of the location based on specific facts (such as whether the presence of employees is naturally expected). In the paid section, I will specifically show the procedure for this judgment and the answer format.)