著者

大野 正博

出版者

関西憲法研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.16, pp.153-178, 2009-12-22

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This article aims to investigate the legality of retaining waste as left property which was determined by the Supreme Court on April 15, 2008 based on discussions in the United States, such as California v. Greenwood, 486 U.S. 35 (1988). Criminal Procedures Law Article 221 is provided for "A public procurator, a secretary of the public procurator's office, or a policeman may retain an article or articles left by the suspect or other persons, or produced voluntarily be the owner, possessor, or custodian." The Supreme Court entered a judgment in which it acknowledges that if the investigation authority renders the necessity of examining discarded disposable waste at waste collection locations on public roads, based on Article 221 in the Code of Criminal Procedure, the investigation authority may retain such waste as left property. Conclusively, this judgment was appropriate in general. However, there are some problems in views of (1) authorization of possession renouncement and (2) privacy right protection for the persons who disposed the waste. It is considered impossible to seize such waste though it is "left property." If the waste is considered to be important evidence, then it is rather appropriate for the investigation authority to proceed with the seizure. We await accumulation of judicial cases which maintain the balance between "the necessity of investigation" and "privacy right protection of the disposers."