From the general to the individual
- After these words, we must address the specific circumstances of the Shimon case and the Urich case. As stated above, the proceeding in Shimon's case came to this court as a request for the return of seizure by virtue of section 34 of the Search Ordinance. In the framework of this proceeding, the Petah Tikva Magistrate's Court, after a hearing held in the presence of the parties, ordered the cancellation of a search warrant that had previously been issued by another panel in the same court, and subsequently - after a hearing in the presence of the parties - it granted an amended request by the authorities and issued a search warrant on Shimon's device. Shimon's appeal against this decision to the District Court was dismissed out of hand, on the grounds that Shimon does not have the right to appeal a decision on an application for a search warrant on the computer - and against this background an application for leave to appeal was filed, which was decided in the judgment in the Shimon case. As Justice Hendel noted at the time, this is a chain of events that is far from routine (in paragraph 10 of his opinion in the Shimon case).
- In view of my conclusions above regarding the relationship between search proceedings and seized return proceedings, I am of the opinion that it would have been incorrect to discuss the application for the issuance of the amended search warrant in connection with the proceeding of returning seized under section 34 of the Ordinance. Given the nature of seized return proceedings, which I discussed at length above, it is possible to understand why the hearings of July 5,2020 and July 15,2020 were held in the presence of the parties. However, if the police's amended request for a search warrant in the case of Shimon (which was the focus of the hearing that took place on July 15,2020) had been properly submitted - i.e., as a new procedure of the type of a search warrant application and not as an application in the framework of the seizure return proceeding - it is highly doubtful in my opinion whether there would have been room to determine that the hearing of the application would take place in the presence of the parties, and this illustrates the need for a procedural separation between the search request and the seized return proceedings. However, in view of the lack of clarity that existed regarding the procedures for a search warrant, and in view of the lack of uniformity in practice in this context, I do not believe that there is room to order the cancellation of the search warrant granted by the Magistrate's Court in the framework of the seizure return proceeding. In my opinion, in the circumstances of the case, it is not possible and appropriate to turn back the clock, and a decision must be made in Shimon's case against the background of the procedural stage in which we are currently finding: after the first search warrant was revoked as part of the seizure return proceeding; after the police filed an amended request for a search warrant in the framework of that proceeding; and after the Magistrate's Court granted the request and issued a search warrant on Shimon's smartphone.
- I am further of the opinion that the District Court was correct in holding that Shimon is not entitled to initiate an objection proceeding against the granting of the search warrant - whether directly by way of an appeal or appeal, or by appealing a decision regarding seizure under section 38A of the Search Ordinance. I therefore accept the majority opinion in the judgment in the Shimon case, according to which the application to an appeal leave filed by Shimon should be rejected, so that the Magistrate's Court's decision granting the request for a search warrant will remain in place and the delay in its execution will be canceled. At the same time, Shimon's arguments and objections regarding the search warrant and the evidence obtained by virtue of it are reserved to him, and he is entitled to raise them in the main proceeding, to the extent that an indictment is filed against him, or in other proceedings outside the criminal sphere, all in accordance with the provisions of the law (see paragraph 53 above).
- As for the applicants in a further hearing, the search of their mobile phones was carried out without a judicial order, contrary to the requirement set forth in section 23A of the Ordinance. Although we did not address this issue in the proceedings at hand, there is no dispute that the search was carried out without the "informed consent" of the owners of the mobile phones, because it was not made clear to them that they were entitled to refuse the search without such refusal being attributed to their obligation. Therefore, there is no dispute that the search was carried out unlawfully, and therefore the implications of the illegality on the decision on the search requests must be clarified.
In the ordinary state of affairs, it may have been appropriate to return the matter to the trial court in order for it to make a new decision in accordance with the principles outlined above, with regard to the implications of a previous illegal search on the decision on the application for a search warrant. However, I do not believe that this should be done in our case, since the circumstances of the matter were discussed in six different "incarnations", in three instances, in which the sequence of events before and before was analyzed. It should be remembered that an additional hearing is not a further appeal, and that "the decision in the additional hearing itself must in any case be based on the factual findings determined in the proceedings prior to the additional hearing" (Yigal Marzel, "Section 18 of the Basic Law: The Judiciary - 'Additional Hearing' in the Additional Hearing" Dorit Beinisch 181,255 (Keren Azoulay, Itay Bar Siman Tov, Aharon Barak and Shahar Lifshitz eds., 2018)). It is superfluous to add that in accordance with the conclusions I have reached, the applicants in the additional hearing were not granted the right to appeal to the District Court at all. Finally, it should be noted that more than two years have passed since the date of the first decision in relation to the search warrants, and in the meantime there has been a significant delay in the criminal investigation of the applicants' case.
- Taking into account the principles outlined in my opinion, I am of the opinion that my colleague Justice Kara rightly ruled that the decision of the Tel Aviv-Jaffa Magistrate's Court in Search Order / Entry Order 51782-10-19 of October 30,2019 [published in Nevo] (hereinafter: the first decision) "expresses a correct and proper consideration of all the circumstances, including the illegality of the preliminary search that was conducted and the limited outline of the search that was proposed [...]" (in paragraph 17 of his opinion in the case of Urich II). Thus, in the framework of the first decision, the Magistrate's Court clarified that at the stage of the investigation, "no rivets are set on questions of admissibility and invalidation of evidence" (ibid., at p. 29), and the effect of the illegal search on the decision on the search requests is examined, without giving decisive weight to the defect in the conduct of the investigating authority. The Magistrate's Court addressed the connection between the products of the illegal search and the evidentiary infrastructure that served as the basis for the submission of the requests, and ruled that even without the unlawful search of the applicants' mobile phones in the Urich further hearing, the evidentiary basis would have been sufficient for the purpose of issuing search warrants in their case. As to the severity of the defect, it was noted that the cessation of the search immediately after the owners of the phones expressed their objection shows that this is not a case of intentional harm or a violation of bad faith. At the same time, the Magistrate's Court examined a series of additional considerations relating to the request, including the severity of the suspicions, the necessity of the order to continue the investigation, and the scope of the requested search, and ultimately reached the conclusion that "in light of the current stage of the proceedings, and also after taking into account the violation of the suspects' rights and the defects that occurred in the investigation, I found, after deliberation, to grant [the police's] request for measured search warrants that propose a 'surgical' and defined search, under close judicial supervision" (ibid., at p. 30).
- Indeed, following the judgment in the Urich I case, the Magistrate's Court changed its original decision and ruled that the application for a search warrant should be accepted only in the case of Applicant 2 in another Urich hearing, and should be rejected in relation to the other applicants (hereinafter: the Second Decision). The Magistrate's Court noted that this discrepancy stems mainly from the fact that in the framework of the first decision, the connection between the products of the illegal search and the decision of the investigating unit itself to file the application for search warrants (ibid., at paragraph 21) was examined. As noted in paragraph 116 above, I too am of the opinion that in the framework of the complex examination of the question of connection, the effect of the products of the illegal search on the conduct of the investigating authority and on its choice to file the search request should be examined. However, it must be remembered that the question of connection - like the other considerations that I have discussed in this context - does not automatically tip the scales. It constitutes only one part of the overall weight of the flaw in the conduct of the investigating authority. Therefore, even assuming that the illegal search did indeed affect additional investigative actions (such as the statements taken from the interrogees), I do not believe that in view of the principles I discussed above, this is sufficient to reverse the conclusion reached by the Magistrate's Court in the first decision. This is especially true in view of the Court's rulings in the second decision that "[...] Even without the products of the [illegal] search, there is a good evidentiary basis that substantiates the orders at the time the applications were filed" (ibid., at paragraph 20); and "I did not find any support for the view that the requests for the orders were intended only to legitimize the results of the investigation (the claim of the whitewashing orders), but rather I found support for the fact that the requests were directed specifically at new evidence" (ibid., at paragraph 24).
- In these circumstances, I did not see room to change the operative result that was decided by a majority opinion in the Urich II case, and I am of the opinion that the search warrants should be left in place and that the stay of execution should be cancelled.
Before concluding, I will reiterate that this result does not detract from the impropriety of the conduct of the investigating authority in the case of the applicants in the case of the applicants in another hearing. It is to be expected that cases of this type will not recur and that the law enforcement agencies will act in accordance with the law and within the scope of the powers granted to them, and will be able to draw lessons from the flaws that the various courts faced in the framework of the various incarnations of the Urich case. As my colleague Justice Elron noted, "It is inconceivable that in the framework of their efforts to eradicate crime, police investigators would carry out actions that are contrary to the law, since there is no correction of injustice in the case" (Urich I, at paragraph 47).