Israel Supreme Court Affirms Right to Refuse Searches

Evidence seized illegally will no longer be admissible in Israeli courtrooms.

In a landmark ruling announced Tuesday, the Supreme Court ruled that evidence obtained by the police during an illegal search cannot be admitted into evidence.

Also, when there is no reasonable suspicion to justify a search, suspects must be told they can refuse to be searched and that this won’t be held against them.
The decision was taken by a three-judge panel including Dorit Beinisch, who formally retired from the court late last month.

Israel's Supreme Court judges
Gil Cohen Magen

This is the first time illegally obtained evidence has been ruled inadmissible as evidence in court since the Rafael Issacharoff case, in which an illegally obtained confession was was ruled inadmissible.

Tuesday’s announcement followed appeals by defendants in three cases in which they claimed they were searched in violation of their rights. Drugs and a knife were found.

Even before Tuesday’s announcement, police procedure allowed searches to be carried out without a warrant only if law enforcement officials had a reasonable suspicion that the suspect possessed an illegal item, or if he was being sought by the police.

One of the parties to Tuesday’s appeal was a 60-year-old Netanya man, Avraham Ben-Haim, who was charged in 2007 with illegal possession of a knife. Police stopped him in south Tel Aviv and asked him to produce identification. A police background check on the spot revealed that Ben-Haim had a criminal record from about 10 years before, but there was no outstanding arrest warrant.

The police ordered Ben-Haim to empty his pockets and found the knife, which he reportedly told them he used to cut fruit because he had no lower teeth. He was taken to a police station and two months later was charged with illegal possession of the knife.

Ben-Haim was initially acquitted by the Tel Aviv Magistrate’s Court, which ruled that the police lacked reasonable cause to suspect that the defendant was concealing a banned item, as the law requires. The court also ruled that the knife could not be produced as evidence.

The prosecution appealed and, at the district-court level, Ben-Haim was convicted. The court said that even if the police’s search in the Ben-Haim case was illegal, the item could still be used as evidence in court. On Tuesday, the Supreme Court ruled that illegally seized items such as the knife could not be used against a suspect as evidence.

In a second case, Yigal Jabali, who had been charged with possession of dangerous drugs, was acquitted by the Supreme Court. In this case, Jabali’s mother allowed police to search his room in their Nahariya home. The Supreme Court ruled that drugs were found in the room as a result of an illegal search without reasonable cause.

In a third incident, the Supreme Court refrained from overturning a conviction because police had information about the presence of drugs at the location of the search.

The court Tuesday acknowledged that suspects could consent to being searched even in the absence of reasonable suspicions, but the consent must be made in the full understanding that they can refuse. In Ben-Haim and Jabali’s case, the court said that understanding was lacking.
Beinisch presented an open-ended list of examples of circumstances that could justify a reasonable suspicion.

They include suspicious behavior or a description of a suspect in the commission of a crime in the area. The simple fact that a suspect has a criminal record, as Ben-Haim did, would not justify a search without a search warrant, Beinisch ruled.

She explained that if a policeman who encountered Ben-Haim had a reasonable suspicion that Ben-Haim had a knife, the officer would have been justified in conducting a search. But no such concrete reasonable suspicion existed in the case, she said.

Beinisch was joined by Justices Edna Arbel and Yoram Danziger. Danziger, who is known as a champion of the rights of suspects and criminal defendants, went even further than Beinisch and Arbel. He said it cannot be expected that the consent to a search is freely made in light of the power disparity between the police and the suspect.

National Public Defender Yoav Sapir, who spearheaded the appeal to the Supreme Court, said the ruling would make it harder for the police to bypass the law. Sapir said the exclusion of illegally obtained evidence sends an additional message by leading to the acquittal of suspects. For his part, Ben-Haim said the police pursued him only because he had once been involved in criminal activity. “The court has put things in order now,” he said. “The police have to know that they can’t do whatever they want.”