Principle No. 3: Arguments relating to the admissibility of evidence have their place at the trial stage and not at the investigation stage (Additional Criminal Hearing 5852/10 State of Israel v. Shemesh, IsrSC 65(2) 377 (2012) (hereinafter: the Shemesh case). Therefore, even in the most extreme situation imaginable, when a suspect claims that he was beaten by the interrogator during his interrogation and the police even confirm the suspect's claim, even then the court will not order the cessation of the investigation, leaving the question of the admissibility of the confession to the trial stage, in which case arguments for disqualification can be raised by virtue of section 12 of the Evidence Ordinance [New Version], 5731-1971 (hereinafter: the Evidence Ordinance) or by virtue of the doctrine of judicial inadmissibility according to Criminal Appeal 5121/98 Issacharov v. Military Prosecutor, IsrSC 61(1) 461 (2006) (hereinafter: the Issacharov case). To be precise: an argument of admissibility has its place at the trial stage, while a claim of confidentiality can also be raised in the framework of the investigation (section 52 of the Evidence Ordinance).
- Much has been written about the potential infringement of privacy and of third parties involved in the intrusion and search of the smartphone, which is "man's best friend" and in which lies the story of a person's life (Judgment in Criminal Appeal 8627/14 Dvir v. State of Israel, para. 7 [published in Nevo] (July 14,2015)). Due to the uniqueness of the smartphone, which is both the body and the soul, as argued in the hearing before us, should the aforementioned basic concepts be changed and the world order reversed?
I do not think so. Indeed, there is no dispute about the potential for the violation of privacy involved in a search of a smartphone, but the depth of the potential for a violation of privacy is the depth of the evidentiary potential inherent in the smartphone (on the characteristics of digital products, see Amit Privileges, at pp. 306-310). There are therefore two facets to technology - a severe violation of privacy alongside an improvement in the ability to reach the truth. In the following lines, I will demonstrate why the result reached by my colleague the President is the obligation of reality.
- A policeman signaled Reuven to stop his car in order to check his licenses. Amazingly, Reuven sped up and fled. At that point, a high-speed police chase began on an intercity road, during which Reuven threw an object from the vehicle, which one of the policemen in the patrol car believed resembled a gun. Eventually, Reuven was arrested and it turned out that he was driving without insurance and without a driver's license. One of the policemen asked Reuven for his phone. Reuven refused and the policeman snatched the phone from his hands, "flipped" the phone for "final calls" and discovered that two minutes before his arrest, Reuven had spoken to a certain phone number. An examination of the police database revealed that this phone number belonged to Shimon, a well-known arms dealer. The police are requesting a search warrant on Reuven's phone in order to review the WhatsApp correspondence between him and Shimon over the past seven days.
Scenario A: The court rejects the request in light of the degree of coercion that accompanied the preliminary search, and since the preliminary search of Reuven's phone is closely related to the infrastructure on which the warrant is sought, and therefore the justification for granting the requested search warrant is reduced.