In our case, the uncertainty before the court that is required to rule on an application for a search warrant on a computer is not substantially different from the uncertainty that surrounds many other decisions that are made at the interrogation stage. Therefore, even if doubt arises as to the legality of a previous search that was carried out on the same computer - and the search warrant was issued against the background of a "missing, vague, partial picture" (paragraph 51 of Justice Sohlberg's opinion in the Urich II case) - this fact does not, in itself, justify a change in the substantive standard in the light of which the court hearing the main proceeding examines the search warrant. In addition, stepping into the "shoes" of the panel that heard the request for a search warrant, and deciding on the request "again" taking into account information that was not accessible in real time, constitutes, in my view, an afterthought and a deviation from the relationship between the investigation stage and the main stage of the proceeding.
Moreover, the court hearing the main proceeding is required to examine the justifications for a search warrant on a computer, including an order that preceded an illegal search of the same computer, to the extent that the results of the search warrant may have implications for the verdict or sentence of a defendant. To this end, it must use the same tools at its disposal when it comes to discussing other evidence that is alleged to have been obtained illegally. These tools were outlined in the doctrine of judicial invalidity that originated in the Issacharov ruling, as well as in the standards set out in subsequent case law with regard to derivative evidence - that is, evidence that was made possible due to the existence of evidence that adhered to illegality (Farhi, at p. 664).
- Thus, in a scenario in which an illegal search of a computer preceded a search warrant issued on that computer, the panel hearing the main proceeding must address two main questions: First, it must examine whether the illegality involved in the previous search leads, in accordance with the tests of the Issacharov rule, to the disqualification of the results of the illegal search (see, for example: Criminal Case (Beer Sheva District) 65130-02-18 State of Israel v. Anonymous, paragraphs 25-50 [published in Nevo] (June 20,2019); Criminal Case (Tel Aviv District) 40074-07 State of Israel v. Bracha, at pp. 145-146 [published in Nevo] (May 27,2008)). Insofar as the answer to this question is positive, in the second stage it is necessary to examine whether the evidence obtained as a result of the search warrant issued afterwards is derivative evidence that should be disqualified. In this context, the case law held that it is necessary to examine "the nature and severity of the illegality that led to the acquisition of the first evidence, the nature of the evidence derivative in question, and the connection between it and the illegality that was involved in conducting the investigation" (Issacharov, at p. 565). Against this background, it was clarified in the Farhi case that derivative evidence will, as a rule, be admissible - but "it will never be immune from disqualification" (ibid., at p. 664). It was further held that when the court comes to examine the nature of the connection between the derivative evidence and the primary and illegal evidence, it must examine two considerations, the existence of which will be examined in each case on its own merits, "and in accordance with the proper judicial policy and common sense" (ibid., at p. 667): one is the existence of a factual causal connection - i.e., factual causation "between the existence of the primary evidence and the possibility of obtaining the evidence derived from it". The second is a legal causal connection, in which policy considerations are applied in order to determine "when the result will be attributed to a certain action in the chain of fact that ultimately led, to its existence" (ibid., at pp. 665-666).
- I will add that the possibility that in exceptional cases in which there was a serious flaw in the conduct of the enforcement authorities, the defendant may also have a basis for the claim of protection from justice (for details, see, inter alia: the Borowitz case, at pp. 806-809; Criminal Appeal 10477/09 Mubarak v. State of Israel, para. 153 [published in Nevo] (April 10,2013); Criminal Appeals Authority 1611/16 State of Israel v. Vardi, paragraphs 55-62 of the opinion of Deputy President Melcer [published in Nevo] (October 31,2018); see also section 149(10) of the Criminal Procedure Law). Indeed, there are clear reciprocal relationships between the doctrine of protection of justice and the doctrine of judicial invalidation, since "the purpose of the fairness of the proceeding serves as a common denominator for them" (Farhi, at p. 647). However, the doctrine of judicial invalidation is a more specific and focused tool, which is adapted to a scenario in which evidence on which the prosecution relies was obtained unlawfully (ibid.; see also Criminal Appeal 2868/13 Haibtov v. State of Israel, paragraph 10 of the opinion of Justice D. Barak-Erez and paragraph 9 of the opinion of Deputy President Melcer [published in Nevo] (August 2,2018)). Therefore, although it is possible to use the doctrine of protection from justice in order to examine the effect of an unlawful search of a computer that preceded a search warrant, the doctrine of judicial invalidation is, in my view, a more appropriate tool for our case, and the main means by which the court must use it in this context.