In contrast to wiretapping that also captures material that is not relevant to the investigation (see the three categories determined in various criminal applications 2043/05 State of Israel v. Zeevi, IsrSC 60(2) 446 (2005); Amit Privileges 240-243), it is precisely the search using a smartphone that can be done in a focused and informed manner. In real life, in accordance with the procedure, the search is done after the contents of the phone have been unpacked in order to avoid conducting the search with the original eye, and after the material has been copied, the material is retrieved in a focused manner.
- Much has been written and said about the complacency and prolongation of the criminal legal proceeding, and about the fact that the situation should not be reversed so that the accuser becomes a defendant at the very beginning of the proceeding and throughout it (see my remarks in Appeal Petition/Administrative Claim 7485/19 Kashkosh v. State of Israel-Ministry of Justice, para. 19 [published in Nevo] (July 6,2020), and my decision in various criminal applications 6662/19 State of Israel v. Ben Oz, paragraph 11 [published in Nevo] (November 24,2019)). Similarly, we must guard against disrupting the investigation proceedings and the complicating and prolonging of the criminal investigative process, while it is the investigator who becomes the suspect. The case before us will only prove. Thus, an investigation into the offense of harassing a witness is still pending, and during the course of the investigation, the principal investigator was even cross-examined in court, in order to determine the connection between the information that was illegally located and the basis on which the search warrants were requested. This only illustrates the danger that the investigator will become a suspect during the course of the investigation, while applying the judicial invalidation tests according to the Issacharov rule or according to the doctrine of protection from justice - all while the investigation proceedings are still underway.
It is difficult to argue that the legislature, which denied the right to appeal to interim decisions in the criminal legal proceeding, intended to grant the right of objection in the criminal investigative proceeding, which by its nature and nature requires speed and secrecy in order to exhaust the investigation and in order to achieve the purposes of the investigation: fighting crime, protecting public peace and investigating the truth. Therefore, I share the President's conclusion that only in exceptional and rare cases will the consideration of an illegal search carried out on a smartphone constitute an exclusive consideration for rejecting the request (paragraph 32 of her judgment). I will note a note of caution that it must be noted that this small opening, of taking into account the illegal search in the midst of an investigation, even if not as an exclusive consideration, will not become an opening "in which there will be wagons and wagons entering" (Shir Ha-Shirim Rabbah, 5). The default is that an improper action by the investigating authority during the investigation does not grant immunity from further investigation. It should be emphasized that the issuance of an order to penetrate a smartphone despite a previous illegal search of the smartphone does not mean "cleaning" or "whitewashing" or retroactive legalization of the illegal search, and therefore I do not believe that the court should search for a connection or causal connection between the illegal search and the request for a search warrant. In general, in the framework of investigative proceedings, the criminal court is not authorized to authorize or disqualify evidence as stated in the Shemesh Rule, and the criminal court does not even have the authority to order the cessation of an investigation for violations of the law against the suspect (Assaf Harduf, "Legalizing the Breach: Requesting an Order to Penetrate Computer Material After Unlawful Penetration - Cleaning Order or Whitewashing Order, " Mishpat on Site 15,72,76 (2020)).
- And if the questioner asks how we educate and deter police investigators from having an "easy hand" on the trigger of intrusion into a smartphone, then the answer has already been given in the rules of disqualification and inadmissibility. This is what will be done with regard to violence in interrogation proceedings, and the same will be done in the future with regard to illegal searches of smartphones. The place of all of these is in the legal process itself, and time will tell how the case law on the matter will develop.
I will not pretend at this stage to set an exhaustive list of considerations, and in addition to the groups of considerations enumerated in the Issacharov case and the considerations discussed by my colleague the President in paragraph 121 of her judgment, I would suggest that when the court comes to examine the degree of illegality in the legal proceeding, the following considerations will be taken into account, inter alia: the severity of the offenses and the public interest; the scope of the illegal search; the manner in which the search was documented; the extent of the violation of privacy and third parties that was actually caused by the illegal search; whether it was an urgent investigation close to the commission of the offense or a non-urgent investigation to which the interrogee was summoned; Whether it is a matter of "browsing" or "skimming" by a police officer on the smartphone near the suspect's arrest, or the unloading of the device comfortably at the police station and an in-depth examination of its products after copying them; the manner and degree of consent given by the suspect to the search; whether the suspect was represented at the time of the consent; whether the suspect had previous experience and knowledge in police investigations; whether the evidence could have been obtained in other ways; and more.
- The bottom line, and while registering the "cautionary note" as stated in paragraph 5 above, I therefore concur with the position of the President.
Judge