This connection must be learned, inter alia, from the conduct of the investigative bodies. For this purpose, it is also possible, in appropriate cases, to bring to the discussion the investigative bodies that decided to conduct the preliminary search, in order to learn whether they already had sufficient information to submit a request for an appropriate search warrant; as well as the investigative bodies that decided to file the request for a search warrant after the preliminary search was carried out, so that it will be possible to understand the extent of the connection between the material found in the preliminary search on a computer or smartphone, and the decision to file a request for an order that will allow for an additional search.
In addition, as I have clarified in various criminal motions, the burden of showing that the request for a search warrant is not based on information obtained in the preliminary search that was carried out illegally, rests with the investigating authorities. This is in light of the significant information gaps with which the interrogee is forced to deal at this stage of the proceeding, and in view of the fact that in some cases, the request for a search warrant will be heard ex parte.
Therefore, when a preliminary search of a person's computer has been unlawfully conducted, and the authorities are interested in a search warrant that will enable a further and in-depth search of it, they must show that they have prima facie evidence that is detached from the unlawfully conducted search, which establishes the need to issue the requested warrant.
If the court finds that there is such a connection, and that the request for a search warrant on the computer is based on the results of illegal investigative actions taken by the investigating authorities, it is necessary to continue to examine whether there is a special justification for granting the request.
Examining the Justifications for Granting a Request for a Search of a Computer Despite the Connection Between it and the Results of Illegal Investigative Actions
- As noted above, my position in the first Urich case is that even when there is such a connection between the preliminary search and the search warrant requested, this does not necessarily mean that the request for the order will be rejected - but rather the circumstances of each and every case must be examined in the spirit of the Issacharov Rule.
- This includes examining the severity of the flaw in the manner in which the preliminary search was conducted; the severity of the suspicions underlying the request for a search warrant; the degree of necessity of the warrant for the continuation of the investigation; the scope of the rest of the prima facie evidence in the file; and the connection of the owner or holder of the computer to the suspicions - for the following reasons:
As to the severity of the defect that accompanied the preliminary search that was carried out unlawfully, in my view, it is necessary to examine, inter alia, the "degree of coercion" that accompanied the preliminary search that was carried out unlawfully. A case in which the investigating authorities took the mobile phone in the possession of a person despite his objection is not similar to a case in which his consent was given. In cases where an agreement was expressed that the police investigators would examine the information stored on the device, it can be argued that it expresses, to a certain extent, "the autonomy given to the individual to consent to the violation of his right to privacy" (Ben Haim, at p. However, as stated, I am of the opinion that there is a considerable difficulty in this. Clearly, this argument cannot stand up to cases in which the interrogee objected to a search of his smartphone.