Police Officers Disregard Search Procedures, and Courts Respond With Acquittals

Despite a 2012 ruling that a person cannot be searched without a warrant or reasonable suspicion, police persist in violating the rights of Israeli citizens.

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Police Commissioner Yohanan Danino.
Police Commissioner Yohanan Danino.Credit: Olivier Fitoussi

In 2011, A., a 46-year-old resident of Israel's coastal plain, was walking home at midnight when two police cruisers with five police officers – four male, one female - pulled up next to him.

One of the officers – who later testified that he recognized A. and knew he had AIDS – accosted him. Meanwhile, the female officer searched A.'s bag and found four grams of hash. A., who has a prescription for medical marijuana, explained that he is terminally ill and that he purchased the hash illegally. He was arrested and an indictment was filed against him. The Magistrate Court in Petah Tikva accepted the police's claim that the search of A.'s belongings was made with reasonable suspicion. The officers said they became suspicious when A. started shaking when they talked to him.

In December 2013, after A. filed an appeal, the Lod District Court overturned the conviction and acquitted A. of the charges against him. In their ruling, the judges wrote that there wasn't enough reasonable suspicion to justify a search in this case, and criticized the police for conducting a search without a warrant.

A.'s case is only one among many. In the last two years alone 70 cases were dismissed after it was found that police filed indictments based on evidence obtained through illegal searches. In these cases, the court leveled sharp criticism at the police's conduct. It's hard to determine the magnitude of the phenomenon, but the number of indictments rejected due to illegal searches shows the police hasn't internalized the limits of its authority.

In March 2012, the High Court set a precedent by ruling that a police officer who wishes to search someone's person or belongings without a warrant or reasonable suspicion, must clarify to that person that he has the right to refuse to be searched – and that this refusal won't be used against him. Justices Dorit Beinish, Edna Arbel and Yoram Danziger even instructed the police to issue new search guidelines.

However, officers' testimonies in court reveal that these guidelines were not strictly followed. In one such testimony from last year, an officer said: "It was nighttime in an empty street, so I would have pulled over next to anyone there, not just this specific suspect." Among the other reasons listed by officers in court as causes for an illegal search were "they looked anxious," "he was shaking," "he didn't look me in the eyes," "we know him in the police."

Y., a resident of southern Israel, experienced the phenomenon personally in 2012 when officers searched his home following information that he might be holding drugs. After an extensive search and questioning, the officers decided to search Y.'s car, even though they didn't have a warrant. They found dozens of shirts by brand name companies imported to Israel privately and not through the authorized importer.

Police filed an indictment against Y., but the Be'er Sheva Magistrate Court acquitted him, ruling that the shirts were inadmissible evidence since they were seized in an illegal search. In the February 2014 ruling, the judge wrote: "I believe that the questioning the accused went through, which failed to keep his rights, creates a causal legal link between the illegal search and his later testimony in the police station. In fact, the accused was already limited very much to the version given in his questioning, and it's doubtful that he had free choice in his interrogation given the earlier version he gave in his home and the evidence seized illegally and presented to him I'll note that recently courts have been increasingly implementing the High Court instructions and have decided on several instances to acquit due to inadmissible evidence obtained in illegal searches."

In March 2014, the deputy president of the Tel Aviv Magistrate Court, Judge Benny Sagie, also addressed the issue in a bicycle theft case. The accused was arrested after a police officer passing by believed that the man started pedaling faster after noticing him. Sagie, who acquitted the accused, wrote in his ruling: "The existing legal framework is meant to prevent the detainment of a man by the police only because he has a criminal background, or because he is known to the police, since these citizens have the right to enjoy the basic right of freedom of movement. Even the detainment of a man for a brief questioning constitutes a limit of his freedoms, and as such must fall under the basic conditions of a reasonable suspicion, purpose, and limited time."

When he took office, Police chief Yohanan Danino started implementing a policy which rates police officers according to the number of indictments filed. Out of the overall arrests made by a unit, 16 percent were required from the unit commander to be filed as indictments. Danino believes that the ratio of indictments to arrests is a measurement of the effectiveness of crime fighting, and raises the chances of catching criminals. At the end of every month the number of indictments is counted – including those rejected by the court. It can be assumed that this quota drives officers to look for known criminals and file indictments even for minor offences or against people belonging to disenfranchised communities. Police officers have even said that wanting to meet the quotas diverts officers from serving the public.

Many other court ruling reveal that the police continues to violate civilians' rights. In September 2013, A., a resident of northern Israel, was acquitted from a charge of holding a knife. A. was held for questioning when he was sitting near his house with friends, after officers who searched a suspicious vehicle in the area noticed them. The officers questioned the youths about a vehicle parked nearby, and they cooperated, presenting the documentation showing they owned the cae. 

However, even though they found the vehicle wasn't stolen, the officers decided to search the youths, and found a knife in A.'s pocket. Police filed an indictment with the Nazareth Magistrate Court, and claimed there was reasonable suspicion to conduct a search, triggered by the anxiety the officers' presence seemed to cause the youths. But the deputy president of the court, judge Lily Jung-Gaffer, acquitted the accused and wrote: "All the officers had in that stage was a gut feeling, an inherent suspicion that it's impossible that these youths, who are known to the police and are together at a late night hour, were not guilty of some offence. The testimony of the officer in court regarding the anxiety the suspects exhibited was not based in fact. There's no evidence of them in the detailed report written after the event or in the testimonies of any of the other four officers present at the scene. My feeling is that these statements were meant to justify the search retroactively, but that they didn't necessarily describe the events which took place."

Jung-Gaffer added: "The fact of the five youths sitting together near the house of one of them, even late at night, isn't enough on its own to raise reasonable suspicion of a crime or the possession of an illegal item, and doesn't justify the violation of their autonomy."

Dr. Yoav Sapir, the national public defender who represented Avraham Ben Haim, whose case brought about the 2012 High Court precedent mentioned above, said: "The Ben Haim ruling is one of the High Court' most important ruling in criminal law in the last decade. Its influence is seen daily in courts." According to him, "courts can now reject physical evidence obtained illegally. In that, the ruling aids in delineating what is permissible and impermissible for law enforcement, a matter especially important for disenfranchised groups and minorities, as well as to those unaware of their rights or fearful of confrontation with the police. Over two years after the ruling, acquittals based on it are still coming in, in dozens of additional cases, testifying to the many cases in which police has broken the law, and for the ruling's necessity."

Police said in response that "Israel Police conducts searches with accordance to the law in order to reveal crimes and keep the public's safety. Therefore, search with consent is conducted according to the terms set by the Ben Haim ruling, and according to the police guidelines which regulate the process."

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