Supreme Court Asked to Clarify Limits of Police Searches

Court to hear two cases: One involves the issue of probable cause for a search; the other involves consent to a search.

The Supreme Court is being asked to rule on the limits of police power in conducting searches of an individual, in its hearing of two cases involving illegal searches. Both cases were appealed by the Public Defender's Office. One involves the issue of probable cause for a search, while the other involves consent to a search.

In the first case a lower court rejected as inadmissible evidence that was the product of a search it ruled illegal. The district court overturned the ruling on appeal. In the second case, both the magistrate's court and the district court upheld the legality of the questionable search.

In the first case Avraham Ben-Haim, 58, of Netanya, was stopped three years ago on a street near Tel Aviv's Old Central Bus Station by three police officers with M-16 rifles who asked him for identification. A check of the police computer system revealed that Ben-Haim had been sentenced to probation for an offense from 1999. There were no outstanding warrants for his arrest. The officers asked Ben-Haim to show them the contents of his pockets, including a knife he said he used for peeling fruit since he has no bottom teeth.

This week he said: "When police come to you in uniform, armed, you're sure that if you don't do what they say they'll say you're under arrest, even if you haven't done anything bad. I thought they're allowed to search. I don't know what I would have said had I known I could say no."

Ben-Haim was charged with possession of a knife.

Tel Aviv Magistrate's Court Judge Dan Mor acquitted Ben-Haim of the charges after excluding the knife as evidence because the police had exceeded their authority in the search.

Mor said the fact that Ben-Haim cooperated with the search did not imply consent, since he was not aware that he had the right to refuse.

On appeal, the District Court did not rule on whether the search was legal, but determined that even if it was illegal the knife was admissible as evidence because the seriousness of the offense of carrying a knife outweighed the damage to Ben-Haim's right to privacy. The court said it assumed Ben-Haim did know that the police had no right to conduct the search and therefore his cooperation implied consent. In the long term, the court said, finding the search illegal could lead to increased crime and decreased enforcement.

The District Court sentenced Ben-Haim about 10 weeks ago to six months' probation and fined him NIS 500.

The deputy public defender, Dr. Yoav Sapir, and public defender Dr. Elkana Laist argued that a person's agreement to a police search cannot legitimize a an illegal search.

Testimony from one of the police officers involved showed the officers did not know their search was illegal.

The second case involved a police search of the Nahariya apartment of an elderly woman that produced illegal drugs belonging to and intended for the personal use of the woman's son, a man in his 40s who lives with her.

Police said said they had received a tip about the drugs three weeks before and that the woman gave them permission to search.

The defense argued that since the search was illegal - because the police did not have the right to search under the relevant drug laws, and the elderly mother could not have given consent - the evidence was inadmissible. The Acre Magistrate's Court deemed the search legal, a ruling that was upheld by the Haifa District Court on appeal.

Sapir, however, told the Supreme Court, "The police are trying to get around the limitations of the law by the 'consent' of the suspect. Clearly this is not real consent, but rather an exploitation of the weakness of a citizen who does not know his rights."