This is all the more valid in light of the rejection of the "fruit of the poisoned tree" doctrine in the Israeli legal system, according to which evidence obtained as a result of a violation of the defendant's constitutional right is invalid (Criminal Appeal 5121/98 Issacharov v. Military Prosecutor, IsrSC 61(1) 461,529-530 (2006) (hereinafter: the Issacharov case or the Issacharov ruling); Criminal Appeals Authority 3199/20 Denis Zaitsev v. State of Israel, para. 24 [published in Nevo] (August 12,2021)).
It is precisely the relative "patience" of Israeli law in the main proceeding for evidence that has already been obtained illegally, that justifies strict adherence to the rights of interrogees already in the early stages of the investigation. Admittedly, from the point where the violation of a person's rights has already occurred, it is possible that the public interest in convicting offenders will enable the acceptance of evidence obtained in an improper violation of his rights, and will not turn a blind eye to existing evidence (see the Issacharov case, ibid.), but when the court is asked to approve an additional violation of the rights of the interrogee, it is not facing a "done act".
Examining the legality of the manner in which the information on the basis of which the search warrant was requested was obtained on the computer even before the warrant was issued, allows the court flexibility to consider in real time the public interest in exhausting the investigation as opposed to the violation of the interrogee's rights. This preliminary examination provides the court with an opportunity to prevent unnecessary infringement of the interrogee's privacy (see also Assaf Harel and Hemda Gur Aryeh, "Between the Issacharov Rule and the Poisoned Tree Fruit Doctrine, " Key Trial, April 2021,43,56).
- Therefore, in my view, the rights of the interrogee may outweigh the public interest in exhausting the investigation, and lead to the conclusion that the court must refrain from lending its hand to an illegal action carried out by the investigating authorities, and prevent the deepening of the violation of the rights of the interrogee by granting a permit to conduct an additional search (see also Additional Criminal Hearing 5852/10 State of Israel v. Shemesh, IsrSC 65(2) 363,389 (2012) (hereinafter: Additional Criminal Hearing); Urich II, at paragraphs 43-45 of the judgment of Justice N. Sohlberg).
- It should be emphasized that I do not agree with the approach that in cases where a factual question arises as to the legality of a preliminary search or the connection between it and the requested order, the hearing on the legality of the search warrant should be postponed to the main criminal proceeding. I do not see any advantage for the court hearing the main case to examine the legality of the preliminary search and the connection between it and the search requested at a later stage in the order.
Admittedly, this means that in certain situations, the court will be required to go into the thick of the matter and examine certain factual issues in order to make its decision. However, these issues do not relate to the offense for which the investigation is being conducted - but rather to the alleged illegal activities of the investigating authorities. By their very nature, these are relatively limited factual issues.