There is a real difficulty in obtaining a starting point that even in cases where a person who is missing has a criminal record and is suspected of a relatively minor offense that was allegedly committed within a limited time frame and without prior planning, it is necessary to hold an ex parte hearing on the request for a search warrant on his computer or smartphone. This is especially true when the search warrant is requested in the framework of an open investigation - and in any case, the fact that there is no specific hearing on the request for a search warrant does not increase the concern of disrupting the investigation.
To illustrate, only recently was I asked for the arrest of a mother and her two children, who allegedly beat police officers who searched their home, which yielded nothing, while the family claimed that it was the police officers who used violence against them. The family members were sent to arrest and a search warrant was issued ex parte on the phone of one of the suspects who filmed the incident. Only when a request to extend the detention of the family members was discussed, did the Magistrate's Court get the impression that the documentation of what happened on the phone was also relevant to the suspects' complaint against the police under various laws, and that "these suspects have no criminal record, two of them are very young and there is no fear of disruption in the investigative activities." In light of these findings, the Magistrate's Court ordered the release of the suspects to their homes, and the search warrant on the mobile phone of one of the children was suspended for further clarification (the Fishman case). The position of counsel for the State that in such cases it is not possible to discuss the request for a search warrant in the presence of the parties should not be accepted.
An investigation must be conducted with any intellect, wisdom, thought, and future vision. In all of this, there may be an appropriate response to the fundamental concerns that the State's counsel pointed out about thwarting the investigation - and a proper alternative to these and other drastic steps at the very beginning of the investigation, which are sometimes taken without even a real need. In this regard, the criticism regarding unnecessary arrests at the beginning of the investigation is certainly remembered as an inherent part of it, but due to a fundamental concern that the suspects will act to disrupt it.
- Accordingly, I am of the opinion that, as a rule, the interrogee should be allowed to raise his arguments regarding the legality of the search warrant requested on his computer and smartphone in particular, and the necessity of its conditions. This is unless the investigating authorities claim that this will lead to the thwarting of the search or disruption of the investigation, and the court is under the impression that there is a reasonable basis for this concern, which is well anchored in the details of the case brought before the court, which cannot be reversed in any other way (see also section 13(a) of the Arrests Law).
Even in cases where there is a certain concern that the search will be thwarted or the investigation will be disrupted, it is doubtful in my opinion whether this is sufficient to tip the scales to a violation of the right of a suspect to commit relatively minor offenses, such as offenses of the "sin" type (see also section 13(a) of the Arrests Law, as well as section 6(b) of the Wiretapping Law). On the face of it, this rule is also valid in relation to a third party whose privacy may be violated as a result of the search. This is provided that he proves prima facie that his privacy will be severely violated as a result of the execution of the order, without any fault of his own - similar to the rulings of this Court in the Shemesh Criminal Appeals Authority regarding an order to display an object under section 43 of the Search Ordinance (see Shemesh Criminal Appeals Authority, at pp. 303-308; see also section 99(a)(6) of the Invention, Search and Seizure Bill).