As I will clarify below, these considerations may have significant implications for the court's decision to issue a search warrant on a computer - including a smartphone - which was preceded by an illegal search by the investigating authorities.
- The date for examining the consequences of an illegal search - already on the date of the hearing of the request for an order for an additional search
- Among the considerations that should be examined in the course of a hearing on a request for a search warrant on a computer, it is necessary to examine, as aforesaid, which other investigative actions have been carried out, or are likely to be carried out, in the course of the investigation. This includes examining both the alternatives available to the investigative authorities for executing the search warrant - with the aim of finding an investigative means that the violation of privacy is less; and the possibility that the requested search warrant is intended to "legitimize" illegal actions that were previously taken.
The determination that it is necessary to examine during the interrogation and before a search warrant is issued on the computer, whether the requested order is intended to "legitimize" illegal interrogation actions already during the interrogation, was adopted in the Urich II case by Justice N. Sohlberg, by the Vice-President (as he was then called) H. Meltzer, and by my colleague the President in this proceeding (in paragraph 116 of her opinion). This determination stems from several reasons:
First, in cases where the request for a search warrant that would authorize an additional search of a computer or smartphone is based mainly on information discovered in a search that was carried out unlawfully, it is possible that the findings of the search carried out pursuant to the search warrant will not be admissible in the main proceeding (see, for example, the Ben Haim case, at p. 353), or this will give rise in favor of the defendant a preliminary argument for protection from justice, which will lead to the dismissal of the charge against him (see the Urich II case, in paragraphs 18-19 of the judgment of the Vice-President (as he was then called) H. Meltzer). Therefore, in these cases, the necessity of the order, which by its very nature will lead to an additional violation of privacy, is questionable.