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Israeli Supreme Court Says Motions for Search Warrants in Digital Devices to be Held Ex-Parte and Unappealable

Publications / May 31, 2021

Article written by Haim Ravia and Dotan Hammer

A majority opinion of the Supreme Court of Israel held that police motions for search warrants in computers and smartphones will be heard ex-parte in Magistrate Courts, without allowing the owners of these devices an opportunity to argue against the necessity and scope of the warrants before they are granted, and the search is conducted. The Court also held that no right to appeal will be given on Magistrate Court’s decisions on these motions.

The Court’s majority found no statutory basis for a two-party hearing and held that such two-party hearing appears to undermine the purposes underlying the statute: effective investigation of offenses and efficient operation of investigative agencies. The majority also explained that a two-party hearing rule would give the owner of the device prior notice of the investigative agencies’ intentions and an opportunity to tamper with the evidence. Thus, the concern of obstruction of justice and prolonged proceedings weigh in favor of an ex-parte hearing.

A dissenting opinion in the three-judge panel opined that a hearing on a warrant to search a device seized in an overt investigation should be held in the presence of both parties as a default rule, unless exceptional circumstances arise, such as a serious concern of obstruction of justice.

CLICK HERE to read the Supreme Court’s decision in Shimon v. the State of Israel (in Hebrew).

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