Consequences of an illegal search that was performed on a computer prior to submitting a search request on it
- The third issue that requires a decision in the proceedings before us is the issue that was at the center of the proceedings in the Urich case, and concerns search requests that are filed in specific circumstances - that is, after an illegal search has been carried out on the same computer on which the search is requested. The questions before us in this context are - what is the appropriate time to discuss the said illegality and how, if at all, does a previous illegal search affect the court's decision in the search request.
- From the decisions in the Urich I case and in the Urich II case, it appears that there is a disagreement among the judges of this Court regarding the following issues: Justice Elron and Deputy President Melcer were of the opinion that already at the time of the hearing of the search request, the effect of the previous illegal search carried out on the computer should be examined, and they disagreed on the issue of the doctrine and the tests with which this effect should be examined; Justice Sohlberg was of the opinion that in situations where the illegality is sufficiently clear, the court will notice the defect that occurred, and its implications for the request for a search warrant, during the hearing thereof; and in situations where the factual picture regarding the illegality is missing, the hearing of its implications for the main proceeding will be postponed; Judge Kara, for his part, was of the opinion that claims regarding illegality in the collection of evidence should be clarified as a rule in the main proceeding, and that only in exceptional and rare cases can these claims serve as an exclusive consideration for rejecting a request for a search warrant.
- This distribution of the opinions of the judges requires study and clarification.
My position on this issue rests on four main conclusions, taking into account the unique characteristics of the investigation stage and the unique aspects relating to a search of the computer: (1) At the stage of the hearing of the search request, there is no room to examine the admissibility of evidence collected or will be collected by the investigating authority; (2) The conduct of the investigating authority prior to the submission of the search request - including the conduct of an illegal search - is a consideration that the court must take into account when deciding on the search request; (3) To the extent that there is a defect in the conduct of the investigating authority, it must be balanced against other considerations that are examined in the framework of a request for a search warrant, but as I will detail below, in extreme cases such a defect can be a decisive consideration for rejecting the request; (4) To the extent that at the end of the investigation it is decided to file an indictment, the evidentiary implications of the illegal search will be examined, as a rule, in accordance with the Issacharov rule.
- The decision on the request for a search warrant does not concern the admissibility of the results of the illegal search
- As is well known, in the framework of the Issacharov Rule, the doctrine of judicial invalidation was adopted for the first time in our system, according to which the court may disqualify evidence obtained illegally, based on a balance between the need to protect the rights of the accused, the fairness and purity of the criminal proceeding - and the value of discovering the truth, fighting crime, protecting public safety and the rights of crime victims (ibid., at pp. 562-564). In the same matter, three sets of considerations were noted by which the court would make the relevant balance and make a decision regarding the admissibility of illegally obtained evidence: the nature and severity of the illegality involved in obtaining the evidence; the extent to which the improper means of investigation had an impact on the evidence obtained; and the damage versus the social benefit involved in the disqualification of evidence (ibid., at pp. 562-567).
In the Shemesh case - which was heard by an expanded panel of seven justices a few years after the Issacharov ruling, in which a request to produce documents under section 43 of the Search Ordinance was discussed, it was clarified that the question of the admissibility of evidence should not be decided in the framework of motions submitted to the court at the interrogation stage, and that "the judicial inquiry must be conducted on the question of the admissibility of the evidence, which was claimed to have been obtained illegally, during the main legal proceeding" (ibid., at p. 391). It was further held in the Shemesh case that there is no room to use the balancing tests set out in the Issacharov Rule - which is a judicial tool designated for the purpose of examining the admissibility of evidence in the main proceeding - in the framework of motions at the investigation stage, in respect of which the court is required to make unique balances in accordance with the nature of each and every request. President Beinisch noted this, stating: