At the same time, the justices sounded highly critical of the police for the slow pace of fixing errors they were making in improperly invading the privacy of suspects regarding cell phones and other electronic devices.
The hearing was broadcast live due to its profound legal implications and the Israel Bar Association and the Public Defender’s Office came out in support of Netanyahu’s advisers’ position.
In mid-February, Netanyahu aides Ofer Golan and Yonatan Orich requested that High Court President Esther Hayut allow them a rare hearing before a broad panel of the court, a request which she granted.
On January 26, a three-judge panel of the High Court of Justice had endorsed the police’s authority to access all data on the two Netanyahu aides’ cell phones.
The two allegedly were involved in efforts to intimidate former top Netanyahu aide turned state’s witness, Shlomo Filber, from following through with his plan to accuse his former boss of corruption.
Generally, broader panels of the High Court are only granted on constitutional issues, but Golan and Orich claimed that the specific legal questions pertaining to the police accessing their cell phones had not been decided until now and did have major constitutional implications.
Essentially, their lawyer Amit Hadad, who also represents Netanyahu in his public corruption trial, said that police had gotten the suspects’ agreement to search their cell phones, but under false pretenses.
Hadad said that the police were obligated to caution the suspects that they could refuse in which case law enforcement would have had to seek a court-approved warrant.
In addition, Hadad said that the police asking for access to suspects’ cell phones without informing them of their right to refuse is a systemic problem, and that the High Court must deny law enforcement use of the data they obtained to teach them a lesson.
At a broader level, Hadad argued that suspects should also be allowed to have lawyers present when the police ask a court for these types of search warrants, and that there should be special early appeal rights in such cases because of the deep violation of privacy.
Hayut and the majority of the justices seemed to respond that such a change would hamper law enforcement’s efforts to fight corruption and get to the truth in criminal probes.
The state lawyers said that many suspects have an interest to delete and corrupt their cell phones and other electronic devices if they have any advance notice and that allowing hearings with defense lawyers before the data of a suspect is secured by police could destroy a wide number of cases.
In terms of this specific incident, the justices were inclined to let the trial court for Orich and Golan deal with the issue by evaluating whether the police violation should lead to disqualifying the evidence, but did not think they needed to be involved now, when an indictment had not even been filed.
Hadad retorted that at the trial stage it would be too late and would reward the police for its violations, but the justices seemed ready to trust any future trial judge to properly balance the issue of police misconduct.
Further, the chief justice noted that the US was trending closer to Israel regarding handling evidence which might have been unlawfully obtained, meaning American law is becoming more lenient about using such evidence if the ultimate conclusion is that the evidence obtained is credible.
The justices suggested that Hadad might need the Knesset to pass a new law if he wanted greater rights for suspects regarding police searches of cell phones and other electronic devices.
By the same token, justices Yosef Elron, Neal Hendel and others slammed the state prosecution and the police for coming to the hearing without having changed their practices.
When a state lawyer said that such cultural changes take time, especially when many police do not realize that cell phone probes have some of the same strict search warrant requirements as home searches, the justices pushed back that the police have had enough time and warnings to change.
The original incident dates back to fall 2019.
It was unclear when the expanded High Court would rule.