38A. (a) A qualified police officer, a person from whom the object was taken or who claims a right to the object may appeal against the decision of the court under this chapter before the district court which shall hear the appeal by one judge.
(b) A decision of the District Court under subsection (a) may be appealed to the Supreme Court, which will hear the appeal by a single judge, if permission to do so has been granted by a judge of the Supreme Court.
- Shimon and the Public Defender's Office raise two possible procedural alternatives for using the seizure recovery mechanism in order to raise objections to a search warrant on a computer prior to its execution. The first is to raise objections to the search warrant in the framework of a request for the return of seizure, which will be submitted in accordance with section 34 of the Ordinance to the competent trial court. According to them, when the grounds for seizing the computer or for its continued possession in the hands of the authorities is the need to search it, examining the justification for continuing to seize is the same as examining the justification for the search warrant. If the request for the return of seizure is rejected, Shimon and the defense are of the opinion that an appeal can be filed in accordance with section 38A of the Ordinance. The second alternative, which was raised by the defense counsel (in paragraph 58 of its position in a further hearing in Shimon), is to refer to the decision in an application for a search warrant as an "implied" decision even in a request for the return of seizure. According to this proposed alternative, the search warrant can be challenged by way of an appeal under section 38A of the Ordinance - so that the claims of the interested party in the computer against the search warrant will be raised for the first time before the appellate court. Shimon further argues that the proceedings for the return of the seized possession may be filed both with respect to the seized computer itself and with respect to the information stored therein. This is in view of the definition of the term "object" in section 1 of the Ordinance, which also encompasses "computer material" (this argument was joined by counsel for the Applicants in another hearing, Urich; see pp. 8-9 and 12-14 of the minutes of the hearing of July 27,2021; but see and compare: Criminal Appeals Authority 5295/18 Maor v. State of Israel - The Economic Department of the State Attorney's Office, paragraph 14(c) [published in Nevo] (August 15,2018)).
- In my view, the mechanism of returning the seizure with all its procedural alternatives cannot serve as a suitable hostel for raising objections to a search warrant on a computer. First, the same reasons that justify the non-recognition of the right to file an appeal or appeal against a decision in an application for a search warrant on a computer are also applicable in this context. Since I have reached the conclusion that there is no reason to delay the execution of the search by means of a direct objection proceeding, there is no reason to do so indirectly, using procedures that are not intended to allow for the hearing of objections to search warrants, and for which the procedures are enshrined in other chapters of the Search Ordinance. In addition, since the person from whom the computer was taken is generally aware of the seizure itself, it is not impossible that allowing the possibility of obtaining a search warrant in the framework of a request for the return of seized possession will open a wide door for the involvement of interrogees and third parties in the search process, and thus thwart, in practice, the purposes that I discussed above, which justify holding the hearing of the search request ex parte. In other words, it can be assumed that any request for the return of a seized person will also become an objection to a potential search warrant (whether or not the interrogee knows at this stage that such a warrant has been issued). Moreover, from a practical point of view, and in view of the enormous number of search warrants that are issued daily in the Magistrate's Courts, opening the door to indirect objection to search warrants on a computer in the framework of an application for the return of seizure may lead to different parties in a particular court to serve, as is routine, a kind of "de facto appellate court" against each other, as indeed happened in the Shimon case. This is an undesirable and inappropriate state of affairs.
- Second, as my colleague Justice (as he was then called) Hendel rightly pointed out in the Shimon case, "The decision as to what to do in the matter of a seized object is a decision of a civil nature, which is mainly related to the property rights of the owner of the object" (in paragraph 13 of his opinion; see also paragraph 7 of Justice Baron's opinion). In other words, the purpose of the seized return proceedings is to determine whether there is room to remove a seized object from the possession of the authorities, and if so, what will be done about it - for example, in a scenario in which there is a dispute as to who is the owner of the rights to the object (see Miscellaneous Applications 555/07 Yehya v. Ariel Police, para. 12 [published in Nevo] (March 6,2007) (hereinafter: the Yahya case)). Search proceedings, on the other hand, are not civil-oriented and do not focus on the proprietary rights in the object or on the entity in whose possession the object should be found. These are proceedings that are at the core of the criminal proceeding, which focus on the question of whether investigators should be allowed to collect information from the object in the framework of an investigation - whether or not it is necessary to seize the object for this purpose - in order to advance the investigation of the truth and complete the evidentiary attachment. In view of their different objectives and the different nature of the two types of proceedings, I do not believe that there is room to use the seizure return proceedings as a way to raise objections in relation to a decision regarding a search warrant.
- Third, the premise underlying the argument of Shimon and the defense attorney is that there is a certain overlap between the issues of search and seizure: insofar as there is no reason to search the computer, it necessarily follows that there is no reason to seize it, and therefore there is no impediment to consolidating the discussion of these two issues within the framework of the restitution proceedings. This assumption is fundamentally erroneous, since the seizure of an object by the investigating authorities can be carried out for a number of purposes - including an "evidentiary" purpose insofar as the object is likely to serve as evidence in the main proceeding; a "preventive" purpose insofar as the object is likely to be used to commit an offense; and the purpose of forfeiting the seized object or ensuring the possibility of future forfeiture (Miscellaneous Criminal Applications 9022/16 Grika v. State of Israel, para. 5 [published in Nevo] (December 22,2016); Miscellaneous Applications Criminal 8151/18 State of Israel v. Abramov, para. 8 [published in Nevo] (January 13,2019); the Yehya case, at para. 12; and regarding the seizure of computers, see, for example: Miscellaneous Applications Criminal 9639/11 Dennis v. State of Israel [published in Nevo] (March 5,2012); Detention until the end of the proceedings (Tel Aviv District) 9632/09 Saban v. M.Y. District Attorney's Office, Civil-Criminal Case [published in Nevo] (May 26,2010)). Therefore, a cause of seizure may exist even if there is no ground for searching the computer. Our eyes, therefore, see that a search is separate, and seizure is separate: Claims against a search warrant constitute a foreign ground in proceedings under sections 34 and 38A of the Ordinance, and there is no room to involve a sex other than its gender and to allow an indirect objection to a search warrant on a computer in the framework of seizure recovery proceedings.
- When I have reached the conclusion that there is no reason to allow the filing of an objection to search warrants on a computer - whether directly in the form of an appeal or appeal, or indirectly through the proceedings of returning a seized possession - the last alternative that was raised in the arguments of the parties and in the judgment in the Shimon case remains. This alternative concerns raising objections to a search warrant on a computer in the framework of an application to the court that issued the order with a request to cancel it.
- Submitting a request to cancel the decision to the court that issued the order
- My colleague Justice Elron was of the opinion that it should be allowed to apply to the court that issued the search warrant with a request to annul a decision made ex parte, by virtue of "the general principle enshrined in the Criminal Procedure Law and case law, regarding the possibility of arguing for the annulment of judicial decisions given ex parte in the framework of the criminal proceeding" (paragraph 44 of his opinion in the Shimon case; see also sections 126,130 and 208 of the Criminal Procedure Law; Miscellaneous Criminal Motions 3390/14 Inbal v. State of Israel [published in Nevo] (June 11,2014)).
- This avenue is also difficult in my view, in view of the fact that the relevant sections of the Criminal Procedure Law apply to a defendant - and in any case to the stage after the filing of an indictment, and not to the interrogation stage (see paragraph 7 of the opinion of Justice (as he was then called) Hendel in the Shimon case). In addition, even when the existence of a search warrant on a computer issued ex parte became known to the interrogee, incidentally, in the window of time between the date of the issuance of the warrant and its execution, the purposes of the investigation stage, and in particular the need to maintain its effectiveness and the constant fear of thwarting it, remain intact. Therefore, I do not believe that there is justification for opening an opening for these interrogees to object to search warrants, which is not available to other interrogees. The same is true in those cases in which the computer is in the hands of the authorities, and the interrogee believes that the seizure was made for the purpose of searching the computer (see paragraph 92 above). There is substantial argument that opening a channel of objection in the form of filing a request to cancel an order issued ex parte will lead to a multitude of requests to cancel search warrants - whether or not the interrogee is aware of the content of the concrete order that was issued. This is liable to delay the investigation and make it cumbersome, similar to the direct objection procedures that I discussed above (appeal and appeal), and therefore I do not believe that such a route is also desirable from a material point of view.
- To summarize this part: the public interest in conducting criminal investigations as quickly and efficiently as possible, and the constant fear of actions to disrupt the investigation, lead to the conclusion that there is no reason to appeal a decision on a request for a search warrant on a computer prior to its execution - whether in an appeal, an appeal, a return of seizure proceedings, or a request to cancel the decision.