Even when there is a reasonable basis for the fear that the search will be thwarted, for example by taking over computer materials remotely, in many cases this concern can be significantly reduced by granting a partial order to penetrate the computer and copying the material contained therein - and only at a later stage to search it (see also Assaf Harduf, "Legalizing the Breach: Requesting an Order to Infiltrate Computer Material After Unlawful Penetration - Cleaning Order or Whitewashing Order?").
Such a possibility does not exist at all in a search of premises, and it also sharpens the need to distinguish between established practices in relation to the manner in which search warrants in premises are discussed and the manner in which it is appropriate to conduct a discussion of search warrants on computers.
- Moreover, we should not accept the approach of counsel for the state, according to which there is a concern that the investigation proceedings will be disrupted by any suspect whatsoever, which always justifies holding a hearing ex parte on a request for a search warrant on a computer. I find it puzzling to me that the words of counsel for the state in the hearing that took place before us, according to which:
"I am the suspect, I know that a phone has been seized, I inform my friend on the right side, you should know that the investigation has begun - and she is taking care of it to disappear the phone... I make sure to run away from here, I inform others that the police are not aware of them, all these concerns exist in every interrogation" (pp. 45-46 of the minutes of the hearing of July 27,2021; emphasis added - Y. A.).
As I also noted during the hearing, such an approach is liable to lead to a violation of the defendant's rights only because of a theoretical fear that he will act to disrupt the investigation; without addressing his personal circumstances and the degree of complexity of the investigation; and without distinguishing between the types of offenses at the center of the investigation and their severity. This is in a marked deviation from the legislature's principled position, which is learned from the Arrests Law, according to which a "reasonable basis for fear" of this type must be indicated, and a vague fear of disrupting the investigation is not sufficient; and even when there is such a concern, the justification for violating the suspect's rights is reduced to the extent that the offense for which he is suspected is minor (see section 13(a) of the Arrests Law).