Moreover, in my view, as a rule, a decision on a request for a search warrant on a computer and a smart mobile phone can be obtained in the framework of an appeal by right - which may be heard by a single judge. In addition, in cases where it was decided to issue the search warrant ex parte, and the owner of the device became aware of this even before the search was carried out - he will be able to file a request for a reconsideration of the decision. This is provided that there is no other reasonable basis for concern that the search will be thwarted or that the investigation proceedings will be disrupted.
- The alternative, according to my approach, is that in the presence of one party, an order may be issued that severely violates the privacy of an interrogee; without giving him the opportunity to defend himself against it; without him being able to appeal the decision that allows for this order; when it is possible that we are dealing with a normative person, who has little connection to the suspicions that are the subject of the interrogation; and in circumstances in which there is no concern of disruption of the interrogation. In my opinion, there is no reason to accept this alternative - such a position is complementary to a real violation of the rights of interrogees, often unnecessarily.
- In our case, in the framework of another criminal hearing in Shimon, the District Court dismissed Shimon's appeal out of hand, and ruled that he could not appeal or appeal the search warrant on his smartphone. As I clarified above, I am of the opinion that this determination is erroneous - and there is a right to appeal against the said decision. Therefore, if my opinion had been heard, we would have instructed the District Court to reconsider the Applicant's case as an appeal against the Petah Tikva Magistrate's Court's decision in the return of seizure 69077-06-20, [published in Nevo] dated July 15,2020.
- With regard to the further criminal hearing of Urich, I am unable to agree with the position of my colleague the President, who adopted the operative conclusion that was decided in the majority opinion in the case of Urich II, as to the absence of a causal connection between the preliminary search conducted on the devices and the search warrants that were requested thereafter.
As I explained above, the burden of showing that there is no causal connection between the preliminary search that was carried out unlawfully and the search warrants requested thereafter rests with the investigating authorities. However, in the Urich case, the investigating authorities refrained from upholding my decision that the hearing in the Magistrate's Court would be held "in the presence of the police officials who took part in the decision to carry out the preliminary search and in the decision to submit the requests for the issuance of search warrants on mobile phones".