Israel's Supreme Court Rules Wiretap Evidence Can Be Used to Prove Minor Crimes

Israel's Supreme Court ruled on Monday that information obtained by an investigating authority through a wiretap conducted in connection with suspicions of a crime carrying a penalty of more than three years in prison can be admissible as evidence to prove a lesser offense.

The ruling was issued in response to an appeal filed by the state against the decision by a district court to acquit a Border Police officer accused of allowing relatives and associates of a Palestinian woman into Israel without a security check, due to a romantic relationship he had with her.

The district court had acquitted the defendant because the warrant obtained by the Police Investigations Unit was used to investigate allegations of bribery, but ultimately he was charged with the lesser offenses of fraud and breach of trust. The Supreme Court sustained the state’s appeal of the acquittal and returned the case for re-hearing at the district court in light of the ruling.

The officer, Elitzur Attias, a Border Police platoon commander who served during 2015-2016 in the tunnels and Ein Yael checkpoints, had developed a romantic relationship with Majida Nicola Alhihi. She asked him on several occasions to help people close to her, residents of the Palestinian Authority, to cross into Israel. According to the indictment, Elitzur cleared them for passage without conducting a security check, or ordered others under his command to let them through while falsely presenting that the car’s occupants had been checked by him.

Attias also brought his personal vehicles to a car wash located close to the checkpoint, within the PA, for repairs and parts. At the request of acquaintances, he also looked up information on police databases to which he had access.

The Jerusalem Magistrate’s Court convicted him of fraud and breach of trust, attempted use of used transport goods and two counts of illicitly obtaining information, and sentenced him to community service. The conviction was based mainly on information obtained in a wiretap approved by the Jerusalem District Court when Attias was at first suspected of bribery and auto theft – felonies carrying a penalty of more than three years in prison.

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Attias appealed his conviction, and in January 2021 was acquitted of all charges. The district court ruled that the Secret Monitoring Law states that warrants for wiretapping can be issued only for felony offenses. The district court ruled that the Police Investigations Unit should have applied for a broader warrant; having failed to do so, the information obtained in the wiretap could not be admissible as proof of the lesser charges.

In accepting the prosecution’s appeal, Supreme Court Justice Yosef Elron stated that “the products of a lawfully conducted secret monitoring shall be admissible in criminal proceedings as proof of any offense, and shall not be limited to proving only felony offenses. I believe that this interpretation is requisite both by the language and the purpose of the law.”

Elron explained his decision by an article of the Secret Monitoring Law that reads “any offense” and a second article that reads “information received lawfully by secret monitoring shall not be admissible as evidence only in a criminal proceeding initiated without complaint.”

In the ruling, Elron also made it clear that insofar as an investigating authority wishes to use information from clandestine monitoring in a way that constitutes a material breach of the limits stated in the warrant, it must reapply to the court for an “expanding warrant.” This warrant will allow the use of information collected to prove offenses other than those specified in the original warrant. Elron did not disqualify the use of such evidence, but he added that in the event that the investigating authorities or the prosecution failed to meet their duty to obtain an expanding warrant, they would have to explain to the court why they failed to do so.

Justice Anat Baron supported Elron’s position. Justice George Kara, in a minority opinion, noted that while the practice of seeking expanded warrants was laudable, it was not anchored in the Secret Monitoring Law. Therefore, he said, there was no basis for obligating an investigating authority to apply to the court for such a warrant.