Additional Criminal Hearing 1062/21 Jonathan Urich v. State of Israel - part 2

(c) Receiving information from communications between computers in connection with a search under this section shall not be considered wiretapping under the Wiretapping Law, 5739-1979.

The term "computer" in section 23A of the Ordinance also includes smartphones, in light of section 1 of the Ordinance, which refers to the definition of the term "computer" in section 1 of the Computers Law, 5755-1995 (hereinafter: the Computers Law), according to which a computer is "a device that operates by means of software for performing arithmetic or logical processing of data, and its peripheral equipment, including a computer system, but excluding an auxiliary computer" (see: Miscellaneous Criminal Applications 6071/17 State of Israel v.  Fischer, paragraphs 10-13 [published in Nevo] (August 27,2017) (hereinafter: the Fisher case); Miscellaneous Criminal Applications 5079/19 Cronenberg v.  State of Israel, para.  10 [published in Nevo] (September 12,2019); Yitzhak Amit Privileges and Protected Interests - Discovery and Review Proceedings in Civil and Criminal Law 113 (2021) (hereinafter: Amit)).  For the sake of convenience, the terms "computer" and "smartphone" will be used interchangeably below.

2. Although every year the police submit tens of thousands of requests for search warrants on computers and mobile phones (see paragraph 24 of the opinion of Justice Elron in the Shimon case; paragraph 108 for the completion of the argument on behalf of the state in a further hearing I will follow), the Ordinance did not prescribe procedures for hearing a request for a search warrant for computer material or as to the manner of appealing a decision on such an application. In addition, it did not establish clear provisions that delimited judicial discretion, where the application for a search warrant for computer material preceded the illegal actions of the authorities in the computer in respect of which the search was requested.  This silence of the Ordinance led to the development of various practices in the trial courts, as well as to quite a few disputes regarding the interpretation of the provision of section 23A above, as evidenced by the various incarnations of the proceedings before us.  In view of the importance of the issue and its practical and broad implications, we saw fit to clarify these issues and to place a halacha on a machine with an expanded panel of nine justices.
3. The three main issues that will be examined below are: (1) Should the hearing of an application for a search warrant on a computer or a smartphone under section 23A of the Ordinance be held ex parte, or perhaps in the presence of both parties? (2) Is there a right to appeal a decision on a request for a search warrant on a computer or smartphone, and if so, how? (3) What are the implications of a previous illegal search carried out on that computer or smartphone, and what is the date when it should be required to do so - at the time of the hearing of the search warrant application, or in the framework of the main proceeding, to the extent that the investigation leads to the filing of the indictment?
4. Before we turn to the discussion of the aforesaid questions, we will briefly discuss the main facts and the relevant proceedings in each of the additional hearings. I will preface by noting that even though the judgment in the Urich II case preceded in time the judgment in the Shimon case, the fundamental question that must be answered in order to derive a decision on the other questions arises in the Shimon case - therefore this matter will be presented first, followed by the Urich case, and later the arguments of the parties in the additional hearing proceedings will be presented in a brief and consolidated manner.

Factual Background and the Sequence of Proceedings in the Shimon Case

5. On June 25,2020, the Applicant was detained in an additional criminal hearing 4072/21 (hereinafter: Shimon) for questioning on suspicion of importing a dangerous drug, and the mobile phone in his possession was seized. Shimon denied the allegations against him, and was released to house arrest.  On June 29,2020, Shimon filed a request to return the seized phone, by virtue of Section 34 of the Search Ordinance.  In this context, on June 30,2020, the Petah Tikva Magistrate's Court (Judge A.  Moreno) instructed the police to refrain from carrying out search and penetration operations on the device until a different decision is made, but added that it may reapply to the court on this matter, to the extent that there is urgency in carrying out these actions (hereinafter: the process of returning the seizure).  The next day, the police filed a request to issue a search warrant for the device, which was granted ex parte by another defendant (Judge E.  Lukshinsky-Gal) and a search warrant was issued in which no conditions were set for the search.  On July 2,2020, as part of the seizure return proceeding, the police filed a motion to cancel the decision of June 30,2020, prohibiting the use of the device, and on July 5,2020, a hearing was held on the request in the presence of the parties.  At the end of the hearing, Judge Moreno ordered the cancellation of the search warrant issued by Judge Lukshinsky-Gal, but allowed the police to hold the phone for an additional 21 days, during which it could file another request for a search warrant.  It was also determined that the sweeping order issued excessively violates Shimon's privacy, and that it should be limited in time and search terms.  On July 14,2020, as part of the seizure return proceeding, the police filed another request to issue a search warrant for the device, and on July 15,2020, the court (Judge Moreno) granted the request, inter alia, in light of developments in the investigation file.
6. Shimon filed an appeal against this decision was dismissed out of hand by the Central District Court of Lod on July 21,2020 (Judge A. Druyan-Gamliel), which ruled that it was not possible to appeal a decision on a request for a search warrant on a computer or smartphone.  As a result, Shimon filed a request for leave to appeal, which was also joined by the Public Defender's Office (hereinafter: the Public Defender's Office) as an "amicus curiae", and this court decided to grant the request and hear it on its merits.

The Supreme Court's ruling in the Shimon case

7. On May 25,2021, the judgment of this court was given in the case of Shimon (as he was then called) Hendel and Justices Baron and Elron). Justice Elron, who wrote the first opinion but remained in the minority, was of the opinion that hearings on requests for search warrants on the computer should be held in the presence of both parties - "unless it is possible to point to a reasonable basis for concern that the search will be thwarted or that the investigation proceedings will be disrupted, which cannot be challenged in any other way" (in paragraph 30 of his opinion).  Justice Elron further noted that in his view, there is a right to appeal a decision on a request for a search warrant before it is executed.  Justice Elron further noted that in cases where the search warrant was issued ex parte, the possibility of appealing may be impractical, but if the interrogee discovers that the search warrant existed prior to the execution of the warrant, he can "apply to the court that issued the search warrant with a request to cancel its decision on the matter", by virtue of the court's authority to cancel a decision made ex parte (in paragraph 44 of his opinion).  Justice Elron further noted that there is no impediment to the interrogee raising his objections to the order in the framework of the hearing of the request for the return of seizure - since at this stage, as a rule, there will be no reasonable basis for concern that the search will be thwarted or that the investigation will be disrupted.  For these reasons, Justice Elron was of the opinion that the District Court should be instructed to reconsider Shimon's case in the framework of an appeal.
8. Justice Hendel, for his part, was of the opinion that the question of the manner in which the application for a search warrant should be heard is not required for a decision in the present case, since the search warrant on Shimon's device was issued after a hearing in the presence of both parties. However, he expressed his position that a request for a search warrant on a computer should be discussed ex parte and that there is no reason to give the police the opportunity to agree to a hearing in the presence of the parties, since such a policy may open the door to grievances on the part of interrogees regarding inequality.  Justice Hendel further ruled that in his view, there is no right to appeal a decision on this application in real time, but only in the framework of the main proceeding.  Therefore, Justice Hendel was of the opinion that the application for leave to appeal in both parts should be rejected, since Shimon did not have the legal right to appeal the Magistrate's Court's decision regarding the search warrant on the computer.
9. Justice Baron joined Justice Hendel's position for similar reasons, but emphasized that in her opinion it is necessary to decide in our case the two questions that arose (the manner of hearing the application and the existence of a right of objection) - since the question of the existence of a right of objection is "inextricably linked to the manner in which the application itself was litigated" (paragraph 4 of her opinion). Justice Baron further held that the lack of regularity in the Ordinance with respect to the procedures for a search warrant attests to a negative arrangement whereby a hearing on an application for a search warrant for computer material will be held ex parte, according to which the interrogee has no right to appeal or appeal against this decision.  However, Justice Baron left the question of whether it is possible to raise arguments regarding the search warrant in the framework of a request to return seizure.

Factual background and the sequence of proceedings in the Urich case

10. On September 4,2019, Mr. Shlomo Filber - a state witness in a criminal case (Jerusalem District) 67104-01-20 [published in Nevo] (as part of the affair known as "Case 4000") - filed a complaint against Yonatan Urich, Ofer Golan, Yossi Shalom and Israel Einhorn (hereinafter: the applicants in a further hearing or the applicants), who were at the time advisors to MK (then Prime Minister) Benjamin Netanyahu - for harassing him near his home. Following the filing of the complaint, the applicants were interrogated by the police.  During the investigation, their mobile phones were searched, including a number of "screenshots" from the phones.  These searches were conducted in the presence of the applicants and after their consent was obtained, but without a search warrant being issued for the devices in accordance with section 23a(b) of the Ordinance, and without making it clear to the applicants that they are entitled to object to the search and that this objection will not be attributed to their obligation.

On October 29,2019, the police submitted a request to the Tel Aviv-Jaffa Magistrate's Court for search warrants on the applicants' mobile phones, in accordance with section 23A of the Ordinance.  As it appears from the Magistrate's Court's decision on this matter, the police brought to the attention of the applicants the submission of the application; they expressed their objection to it; and their objection was brought to the attention of the court by the police.  As a result, on October 30,2019, the court (Judge A.  Masarwa) held a hearing on the application in the presence of the parties, and at the end accepted the request, noting that "there were indeed a number of flaws in the conduct of the investigative unit", and in particular in the conduct of the police in relation to applicant 2, Ofer Golan, who was required to return to his vehicle with a police escort in order to bring the device, in a manner that indicates "an investigation plan that was intended in advance to penetrate the device" without a judicial order being issued.  However, the court emphasized that the opposing considerations - i.e., the public interest in exhausting the investigation and investigating the truth - outweigh the flaws in the police's conduct, and that the ordered orders "propose a 'surgical' and defined search, under close judicial supervision."

11. An appeal against the Magistrate's Court's decision was filed with the Tel Aviv-Jaffa District Court (Judge E. Hayman), which was rejected on November 19,2019, inter alia, taking into account the existence of a vital public interest in exhausting the investigation in light of the seriousness of the offense of harassing a witness; in view of the proposed search outline; and taking into account that the very fact of granting the search warrant does not determine findings as to the admissibility of the evidence.  The Applicants filed an application for leave to appeal against this decision, which was heard on its merits and was accepted by Judge Elron (Miscellaneous Criminal Applications 7917/19 Urich v.  State of Israel [published in Nevo] (December 25,2019) (hereinafter: the First Urich Case)).  In the same matter, Justice Elron ruled that in circumstances in which an unlawful search of the same computer or smartphone preceded the request for a search warrant, the court will be required, already at the time of the hearing of the application and not in the framework of the main proceeding, to examine the effect of the illegal search on the computer on the request for an order for an additional search thereof.  This is done by means of a two-stage test: in the first stage, it is necessary to examine whether there is a connection between the information found in the preliminary and illegal search and the factual basis on which the order is sought; to the extent that the court finds that such a connection exists, it is necessary to continue to examine in the second stage whether there are special considerations that justify granting the warrant despite the severe violation of the interrogee's privacy.  With regard to the case at hand, Justice Elron noted that in balancing the public interest in exhausting the investigation and minimizing the violation of the applicants' privacy as a result of the unlawful search, the second consideration prevails, but ruled that there is insufficient data before him to determine the degree of connection between the preliminary search and the search warrants requested.  Therefore, Judge Elron ordered that the case be returned to the Magistrate's Court for the purpose of holding a new hearing on the application in the presence of the parties, in the presence of any of the police officials who took part in the decision to carry out the preliminary search and in the decision to file the application for the granting of the orders.
12. On January 19,2020, after a hearing in the presence of the parties, the Magistrate's Court granted the request for a search warrant for Applicant 2's device only. The Court accepted the Applicants' position that it is necessary to examine whether there is a connection between the results of the illegal search and the decision to request search warrants itself, and noted that with respect to Applicants 1,3 and 4, there is difficulty in examining the "clean" evidence separately from the "contaminated" evidence - since their interrogations took place only after the illegal search of Applicant 2's telephone had already been carried out.  The State and the Applicant filed two appeals against the Magistrate's Court's decision to the District Court (Judge Heiman), which granted the appeal filed by the State and ruled that the "connection test" is an objective test, the purpose of which is to examine the connection between the products of the illegal search and the factual basis underlying the application, and that in our case, the "clean" information constitutes a sufficient basis for all requests for intrusion warrants.
13. The Applicants filed an application for leave to appeal against this decision to this Court.

The Supreme Court's Judgment in the Urich II Matter

14. On January 26,2021, this Court rendered its judgment in the case of Urich II (Deputy President Melcer and Justices Sohlberg and Kara). All of the justices on the panel were of the opinion that leave to appeal should be granted, but their opinions differed as to the criteria by which the court would examine the effect of a previous illegal search on the application for a search warrant, as well as with respect to the point in time at which it is appropriate to determine the nature of the illegality and its consequences.  Justice Sohlberg, who wrote the main opinion, was of the opinion that the court hearing the application for a search warrant must examine, first, whether there is a clear factual and legal causal connection between the illegal search and the factual basis on which the request for a search warrant was based.  If this is the case, and where the factual picture of the very existence of the illegality, its severity, and its connection to the application is clear and clear, the court that heard the application, according to Justice Sohlberg, must examine the defect in obtaining the evidence in light of the tests set out in Criminal Appeal 5121/98 Issacharov v.  Military Prosecutor, IsrSC 61(1) 461 (2006) (hereinafter: the Issacharov case or the Issacharov ruling), while adapting them to the hearing of requests for search warrants using computer material.  According to this approach, in the first stage, the court will examine the nature and severity of the illegality; in the second stage, it will examine the extent of its influence on the authority's decision to request the search warrant; Finally, the court will examine the relationship between the damage and the benefit of rejecting the application for a search warrant.  On the other hand, when the factual situation regarding the illegality and its connection to the application is vague and partial, but the grounds justifying the issuance of the search warrant are met, the hearing of the defect and its implications for the main proceeding will be postponed; then the court hearing the main proceeding will step into the shoes of the judge who heard the application for a search warrant using computer material, and re-examine whether, in light of the defect, it was correct to issue the search warrant in the first place.  Specifically, and with respect to the present case, Justice Sohlberg was of the opinion that there was no positive determination in the decisions of the trial courts as to the existence of a factual causal connection between the illegal search and the factual basis underlying the application, and therefore the District Court's decision and the search warrants on the applicants' mobile phones should be left in place.
15. Justice Kara agreed with the operative conclusion reached by Justice Sohlberg, but was of the opinion that, as a rule, claims regarding illegality in the collection of evidence should be clarified in the main proceeding, and that only in exceptional and rare cases will this illegality justify in itself the rejection of the request for a search warrant. Deputy President Meltzer, for his part, was of the opinion that the appropriate stage to determine the nature of the defect that occurred in the preliminary search and to examine its implications is at the stage of the hearing of the request for a search warrant, and according to him, "the rule should be to refuse the request of the investigating authority, unless it succeeds in showing exceptional and exceptional circumstances to justify the warrant" (in paragraph 17 of his opinion).  However, Deputy President Melcer rejected the tests proposed by Justice Elron and Justice Sohlberg and ruled that the tests of the doctrine of protection from justice should be applied in this context.  With regard to the present case, Deputy President Melcer ruled that the evidence underlying the application for a search warrant was obtained during or following the illegal searches, and therefore there was no reason to order the issuance of search warrants on the applicants' mobile phones.
16. From an operational point of view, it was therefore decided to leave the District Court's decision in place so that the search warrants with respect to the four applicants would remain in force (Justices Sohlberg and Kara against the dissenting opinion of Deputy President Meltzer), and "as to the manner in which the rule will be applied from here on out, it was decided, as stated, in the judgment of Justice N. Sohlberg, who was joined by the Deputy President, Judge H.  Meltzer, each for his own reasons, against the dissenting opinion of Justice G.  Kara."
17. For the sake of completeness, it should be noted that in the framework of the judgment - which was given prior to the judgment in the Shimon case - two of the panel's judges addressed, more than necessary, the question of the right to appeal to a search warrant: Deputy President Melcer was of the opinion that a decision to issue a search warrant in the framework of a request for the return of a seized person could be challenged (in paragraph 12 of his opinion), while Justice Kara was of the opinion that arguments in this context could be raised in the framework of the main proceeding (in paragraph 7 of his opinion).

Requests for Further Hearing

18. On February 15,2021, the Applicants petitioned in an additional hearing to hold an additional hearing in their case, and the execution of the judgment in the case of Urich II was delayed until the judgment was rendered in the additional hearing (see decisions of March 24,2021 and June 20,2021). It was further determined that the Public Defender's Office and the Israel Bar Association (hereinafter: the Bar Association) would join as "Friends of the Court" (see decisions of April 6,2021 and May 18,2021), while the request of the "Privacy Israel" association to join as "Friend of the Court" was rejected (decision of April 27,2021).  In addition, it was decided at Shimon's request to hold an additional hearing in his case as well, and the Public Defender's Office was added, at its request, as a "friend of the court" to the said additional hearing as well.  It was also determined that the state would refrain from carrying out intrusion or search operations on Shimon's mobile phone until the verdict was rendered in the additional hearing (decision of June 20,2021).
19. In view of the thematic proximity between the fundamental issues raised in the two motions, the hearing was consolidated (see my decision of June 20,2021), and in accordance with the panel's decision of July 25,2021, the hearing, which took place on July 27,2021, before an expanded panel of nine justices, was broadcast live, in which the parties reiterated their arguments and clarified what needs to be clarified.

Summary of the parties' arguments in the motions for further hearing

20. According to Shimon, in appropriate circumstances, a hearing on the application for a search warrant on the computer should be held in the presence of both parties, for example if the request was filed after the computer was seized, or in those cases in which the court believes that there is justification for holding a hearing in the presence of the parties. In addition, Shimon is of the opinion that a sweeping denial of the possibility of obtaining a search warrant on a computer is liable to lead to a miscarriage of justice, and that it is particularly harmful to crime victims, complainants and witnesses - and therefore, in his view, such an objection should be allowed in the framework of seized return proceedings.
21. In a further hearing, the Applicants are of the opinion that, as a rule, where an application for a search warrant was preceded by an illegal search of the same computer, the court must discuss the consequences of the illegal search in the framework of deciding the application for a search warrant. At the same time, according to them, an exception to the rule should be determined, whereby where there is a "factual dispute" as to whether an illegal search was indeed carried out prior to the filing of the application for a search warrant, the hearing of the defect in the main proceeding will be held, in accordance with the outline proposed by Justice Sohlberg.  In a further hearing, the Applicants further argue that the initial burden should be placed on the interrogee to prove that the investigating authority illegally penetrated his mobile phone, and that to the extent that the interrogee proves this, the burden will shift to the investigating authority "to prove that there is no connection, even the slightest bit, between the illegal search it carried out on the interrogee's mobile phone and its late request to obtain an intrusion order to that device." However, according to them, in certain circumstances - for example, to the extent that the investigating authority has acted unlawfully repeatedly - there will be an irrefutable presumption that there is a connection between the requested order and the illegal search, which necessitates the rejection of the request.  Finally, the applicants in a further hearing are of the opinion that even if the state did not meet the burden of proving the absence of a connection between the illegal search and the filing of the application for a search warrant, this does not automatically require the rejection of the application, but rather the court must examine whether there are special considerations that justify the granting of the warrant, and the burden of proving such justification is on the state.
22. The Public Defender's Office argues that the language of the Ordinance and the legislative history of section 23A do not provide an unequivocal answer to the question of whether a hearing on a request for a search warrant on a computer should be held ex parte, and it emphasizes that at the time of the last relevant amendment to the Ordinance in 2005, no one could have imagined the change that smartphones would create in the reality of life. The Public Defender's position is that this is a lacuna in the law, which can be completed through case law and the purposes underlying it.  According to the Public Defender's Office, a hearing in the presence of the parties should be set by default, unless there is a "real concern" that the investigation will be disrupted.  Holding the hearing in the presence of the parties, according to the Public Defender's Office, may assist in making informed decisions and supervising the enforcement authorities, and will allow the court to be exposed to information that only the owner of the device can provide, and which may influence the decision in the application for the issuance of a search warrant.  Moreover, the approach of the Public Defender's Office is justified in recognizing the right to appeal, whether by virtue of section 38A of the Ordinance (Appeal against a Request for Return of Seizure) or by virtue of the Court's inherent authority.  However, to the extent that the majority position is accepted that the hearing of a search warrant application should be held ex parte - filing an appeal becomes impractical, and therefore, the defense's position is justified in adopting the position of my colleague Justice Elron that a search warrant can be challenged in the framework of a request for the return of seized possession (and an appeal against a decision in this application).
23. With regard to the illegality of the previous search, the Public Defender's Office is of the opinion that the flaws in the conduct of the investigating authorities during the hearing of the request for a search warrant should be discussed, and that when examining the implications of the defects on the request for a search warrant, a range of considerations should be examined, including the intensity of the violation of the interrogee's privacy; the intensity of the defect in the investigative authority's action; the severity of the suspicions attributed to the interrogee; the necessity of the warrant for the continuation of the investigation; the interrogee's connection to the suspicions; and the connection between the unlawful search and the request for an intrusion order. In those cases in which it is not possible to decide whether an unlawful search was conducted on the interrogee's device, the defense is of the opinion that the discussion of the legality of the search that preceded the main proceeding should be postponed, while the panel hearing it will step into the shoes of the panel that heard the search warrant in this context.
24. The Bar Association is of the opinion that when an investigative authority illegally penetrated the phone of an interrogee, "consciously and where it could have acted otherwise without there was an objective impediment", it will be prevented from filing a request for a late search warrant "when its hands are not clean", in light of the standards of the doctrine of protection from justice. The Bar Association is also of the opinion that the consequences of the flaws in the authority's conduct should be examined already in the framework of the hearing of the request for a search warrant.
25. The state, for its part, is of the opinion that the majority opinion in the Shimon case gives due weight to the unique nature of the stage of conducting the investigation, which requires speed and secrecy, and its approach should be determined that the hearing of requests to search computer material should be held ex parte, in accordance with the practice that is practiced to this day. The state is also of the opinion that there is no reason to allow the interrogee to challenge a search warrant on a computer that was issued in his case, and it adds that many of the arguments raised regarding the violation of the rights of interrogees and third parties are also relevant with regard to other interim decisions in criminal cases in respect of which there is no right of objection, such as a decision to accept improperly obtained evidence or to reject a claim of "no response to guilt" (paragraph 25 of the state's response to the request for a further hearing in the Shimon case).

With regard to the issuance of an illegal search after which a request for a search warrant is filed on the same computer, the state relies on the opinion of Justice Kara that, as a rule, claims regarding illegality in the collection of evidence are clarified in the main proceeding.  According to the state, only in exceptional and rare cases, for example, when a clear violation of the law has occurred, will this justify the rejection of a request for a search warrant, and that too only in cases where the suspicion is that a relatively minor offense has been committed, in which no additional suspects are involved.  The state further emphasizes that it is not possible to apply the tests of the Issacharov rule at the stage of the application for a search warrant on a computer, and that in order to expose the factual picture relating to a flaw in the conduct of the authorities, it is necessary, as a rule, to hear evidence in the framework of an adversarial proceeding, which does not exist to the extent that the request is heard ex parte.