In the Shimon case, I left the question of whether it is possible to obtain a search warrant in the framework of a seized return proceeding. Now that this matter is also required for a decision, I also join President Hayut in holding that the mechanism for returning the seized possession cannot serve as a suitable venue for raising objections to a search warrant on a computer. Thus, for her reasons, I see no reason to repeat them; and in any event, since in my opinion it is not possible to directly obtain a decision regarding a search warrant on a computer before it is executed, it is not possible to permit "through the window" what is not possible "through the door".
Judge
Justice G. Kara read:
- After reading the judgment of President E. Hayut, I found it necessary to agree with her position regarding the operative result and in part with her position, as will be detailed.
- and this is my position on the merits. First, a hearing on requests for a search (penetration of computer material) must be held ex parte, without exceptions; second, there is no right of objection to the court's decision in the application; and third, an illegal search carried out by the investigating authority prior to the filing of the application for a search warrant is a consideration in the court's considerations when it comes to deciding on a request for a search warrant (penetration of computer material), when only in exceptional and rare cases can it constitute an exclusive consideration for rejecting an application for a search warrant, the criteria for the court's decision in these circumstances are the criteria detailed in additional criminal hearing 5852/10 State of Israel v. Shemesh, IsrSC 65(2) 363 (2012) (hereinafter: the Shemesh case)) and the doctrine of judicial invalidation should not be applied at this preliminary stage.
- It is my position that underpinned my judgment in various criminal motions 1758/20 Urich v. the State of Israel [published in Nevo] (January 26,2021) (hereinafter: the Urich II case)), which, although it did not deal directly with the procedural aspects of the proceeding, left no choice but to address them, even if only briefly (ibid., paragraphs 4,7, 13 and 16 of my judgment). I have not changed this position even now, after the conclusion of the proceeding before us and after I have reviewed the opinions of my colleagues.
And these, in short, are my reasoning.