This, of course, has a material implication for the question of whether the violation of privacy as a result of the issuance of the order exceeds what is required - a question that must be examined as aforesaid, both in accordance with the provisions of section 23A of the Ordinance, and in accordance with the principle of proportionality, according to which a person's basic rights should not be infringed beyond what is required (see also my decision in Miscellaneous Applications Criminal 5612/18 Gabbay v. State of Israel, paragraph 27 [published in Nevo] (August 23,2018) (hereinafter: the Gabbay case)).
Second, in cases where the request for a search warrant is based on a preliminary search that was carried out illegally, there is concern that the investigating authorities have carried out a kind of "fishing expedition" on the interrogee's mobile phone or computer in order to obtain a piece of information to substantiate the request for a search warrant. However, it is clear that such conduct undermines the provisions of the Ordinance, which explicitly instruct that a search of a computer may not be conducted except in accordance with a judicial order, and entails a widespread violation of the rights of interrogees unnecessarily (see also the words of Justice Y. Turkel in the case of the High Court of Justice 66/81 Inspector General of the Israel Police v. Magistrate's Court Judge, IsrSC 35(4) 337,352 (1981); High Court of Justice 4455/19 Tabka Association - Justice and Equality for Ethiopian Immigrants v. Israel Police, paragraph 34 of the judgment of President E. Hayut [published in Nevo] (January 21,2021)).
Granting a request for a search warrant, without taking into account the fact that it was preceded by an illegal search, may provide a certain incentive for the investigating authorities to conduct such a "fishing expedition", since even if the results of the preliminary search do not constitute admissible evidence, it is possible that the rest of the information found in the later search, which will be carried out in accordance with the search warrant, will be accepted as such (for a discussion of the incentives of the investigating authorities to obtain evidence illegally, see also: Alex Stein, "Wiretapping and Hidden Electronic Surveillance as Means of Advancing a Criminal and Security Investigation, " Mishpatim 14,527,549-553 (1984)).