Postponing the date of the hearing on the legality of the first search and its connection to the second search means accepting the possibility that the court will lend itself to the illegal activity of the investigating authorities. It will also lead, in practice, to a disregard that has no place in the provision of section 23A of the Search Ordinance, according to which a search warrant may not be issued on a computer that violates a person's privacy beyond what is required; as well as the general principle that a person's basic right should not be violated beyond what is required, which I discussed above - while establishing the illegal action and providing temporary authorization for it. The end of this approach is that it may, God forbid, encourage illegal activity on the part of the investigative authorities.
- It should also be noted that this conclusion is not limited to cases in which a search warrant is specifically requested on a computer. This is because the principle of proportionality, according to which a violation of a person's basic rights must be avoided in a manner that exceeds what is required, is not unique to these searches. Similarly, the principle that the court should not lend its hand to an illegal action carried out by the authorities may also apply in other contexts.
Accordingly, in my opinion, in any case in which the investigating authorities seek to carry out an action that violates a person's right, and which is based on an illegal action carried out by them, the illegality of their previous actions is liable to lead to the rejection of the request to carry out another investigative action (see and compare for further discussion Criminal Shemesh, p. 389).
- In any event, the unique provisions of the law set forth in section 23A of the Search Ordinance, which I discussed above, give special weight to privacy considerations with regard to search warrants on computers, and they are capable of establishing and emphasizing the importance of the right to privacy, and the need to limit the violation thereof in the framework of such searches. This is provided that there is a connection between the illegal actions of the investigating authorities and the search warrant requested; and that there are no special justifications for granting the request for a search warrant, despite the severe violation of the privacy of the interrogee, and despite the concern that the findings of the search warrant will not constitute admissible evidence in the main proceeding in a manner that would reduce its necessity in the first place.
I will elaborate on these considerations, and the circumstances that may justify the rejection of the application due to an illegal investigative action that preceded it.
- Implications of Illegal Investigative Actions on a Decision on a Request for a Search of a Computer
- In my decision in the first Urich case, I determined that in cases where an application for a search warrant was preceded by an illegal search on a computer, the implications of the illegal search on the possibility of granting the request for the warrant must be examined by means of a two-stage test: in the first stage, it is necessary to examine whether there is a connection between the information found in the preliminary and illegal search and the factual basis on which the order is sought; and when this connection exists, it is necessary to examine whether there are special considerations justifying the granting of the warrant - in the spirit of the Issacharov Rule.
On the other hand, in the Urich II case, my colleague Justice N. Sohlberg was in favor of a three-stage test, which is also similar to the tests set out in the Issacharov rule - in which the illegality of the activity of the investigating authorities must be determined at the first stage, and only then the two stages described above must be applied. As for myself, I do not see a particularly significant gap between the two-stage test that I proposed in the Urich I case, and the three-stage test that Justice Sohlberg discussed in the Urich II case. This is because, according to my decision, the two-stage test will apply only in cases where it was determined that the investigating authorities took an illegal investigative action. My colleague, President A. Hayut, was of the opinion that the tests set out in the Issacharov rule were irrelevant in this context, and instead of determining a detailed outline for balancing these cases, she insisted on a number of principles that should be required.