"A search, whether pursuant to a warrant or not, shall be conducted before two witnesses who are not police officers, unless -
(1) It was not given in the circumstances of the matter and because of its urgency to its value as aforesaid; The circumstances of the matter and the reasons for its urgency will be detailed in the minutes that will be prepared;
(2) Judge allowed it to be conducted without witnesses;
(3) The occupant of the house or the place where the search was conducted, or one of his household members present there, requested that it be conducted without witnesses; The request will be detailed in the minutes to be prepared".
The main purpose of the presence of two witnesses who are not police officers during a search of a home or premises is to protect the rights of the individual, and in particular his privacy and property, to ensure the integrity of the search and investigation process by preventing allegations of evidence implantation, and to serve as an objective body that supervises police operations and ensures the reliability of the search.
In the circumstances at hand, it seems to me that there was justification for carrying out the search urgently, both because of the severity of the offense of which the defendant was suspected and because of the fear that the warehouse would be used by others, given that the warehouse was used by other tenants in the residential building. However, I am not persuaded that efforts were made to locate two witnesses as required by law, so that for example, it was possible to summon the defendant's mother and sister who were in their home; In any event, the court was not presented with a protocol detailing the reasons and circumstances for conducting the search without witnesses other than police officers. Therefore, it is necessary to conclude that this is a search that has a flaw in its legality.
However, after I have considered all the considerations in accordance with the Issacharov Rule and Section 56A To the Evidence Ordinance (New Version), I am satisfied that the findings of the search should not be disqualified despite the illegality in the manner in which it was carried out. As noted, the doctrine of judicial invalidation allows the court to invalidate evidence obtained illegally. This authority is relative and its purpose is to prevent a material violation of the constitutional right of a defendant to a fair trial by accepting evidence obtained in improper ways (Issacharov, pp. 561-562). The application of this doctrine requires striking a balance between the need to protect the rights of the accused, and the public interest in discovering the truth, protecting public safety, and the rights of crime victims. As determined, three sets of considerations must be taken into account when making the balance (Issacharov, pp. 562-566).