In any event, what our approaches have in common is that in cases where an illegal search was carried out on a computer - including a smartphone - the connection between the information found in the preliminary and illegal search and the factual basis on which the order is sought must be examined; and that even if there is a connection between the illegal search and the requested order, this does not necessarily mean that the request for the order should be rejected. I will now elaborate on the justifications for these determinations.
Examining the connection between the illegal interrogation and the requested order
- In cases where the investigating authorities took an illegal investigative action prior to submitting their request for a search warrant on a computer - including a smartphone - it is necessary to first examine whether there is a connection between the illegal action and the requested warrant.
To the extent that the necessity of the search warrant on the computer is based on prima facie evidence obtained in the framework of the preliminary search that was carried out unlawfully, the less justification there is for granting the request for the issuance of the requested search warrant; whereas when there is no connection between the two, the very existence of the preliminary search does not affect the decision to grant the search warrant on the computer.
This is because, in cases where the information obtained in the framework of the first search, which was carried out unlawfully, does not contribute to the evidentiary infrastructure underlying the request for a search warrant on a computer, the issuance of the search warrant does not deepen and exacerbate the violation of privacy caused as a result of the first search; the fear that the products of the search warrant will be invalidated is limited; and the issuance of the search warrant should not be seen as an endorsement of the illegal activity of the investigating authorities (see also: Hudson v. Michigan, 547 U.S. 586,592 (2006)).