‘Suspects must know they can refuse to be searched’

Supreme Court calls on police to develop formal guidelines for searches without warrants.

March 7, 2012 03:24
3 minute read.
police search [illustrative]

police search, search dogs, suspect_370. (photo credit: Thinkstock/Imagebank)


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In a ruling on Tuesday, the Supreme Court found that searching a suspect’s body or belongings without their prior consent may be unlawful, and evidence obtained this way may be ruled inadmissible in court.

The court also called on police to develop formal guidelines regarding the power to carry out body searches without a formal warrant.

The panel of three justices – Supreme Court president (emeritus) Dorit Beinisch, Edna Arbel and Yoram Danziger – addressed the balance between police officers’ power to search and citizens’ constitutional right to privacy.

In its ruling, the court accepted the appeals made by two defendants convicted in the district courts, who claimed that evidence brought against them should be discounted because it was obtained during unlawful police searches. A third appeal, of a drug possession conviction, was refused.

Under the Police Ordinance, which sets out police powers, officers are permitted to enter and search a locale without a warrant in certain circumstances, such as when there is reason to believe a crime is being committed or was committed recently. Police may also search a suspect’s person and belongings without a warrant and with consent, if there is reasonable suspicion that the suspect is carrying stolen or illegal goods.

The first appellant, Avraham Ben- Haim, was sentenced to six months of probation and fined NIS 500 for illegal possession of a knife. He had been apprehended by two officers in Tel Aviv, who found there was no warrant for his arrest but he had “some sort of criminal record.” They asked him to turn out his pockets, and found a knife. His attorneys, Yoav Sapir and Elkana Laist, argued that the knife evidence was inadmissible since police had not obtained a warrant.

The second appellant, Yigal Jabli, was convicted of possessing the drug buprenorphine, an opiod dubbed “poor man’s smack.”

Police seized the drug when they searched Jabli’s room in his absence, after his mother allowed them to enter.

The court rejected Jabli’s defense that the search had been illegal.

The court said that the police had not made it clear that the suspects could refuse the searches, and ruled that since the evidence against both Ben-Haim and Jabli was inadmissible, they would be cleared of their convictions.

Beinisch said that the inherent power differentials between citizens and officers meant that police should make it clear to suspects that they have the right to refuse searches without warrants, and this will not be used against them.

Beinisch – echoed by Arbel – also called on police to develop formal procedures for conducting body searches when suspects consent but there is no warrant. However, Beinisch noted that although warrantless searches violate suspects’ right to privacy as set out in the Basic Law: Human Dignity and Liberty, when suspects consent to searches, that right to privacy is minimal – since police are charged with enforcing the law and apprehending criminals.

Arbel noted that police should be equipped with mechanisms to deal with increasing violence on Israel’s streets, saying police searches are a “key enforcement tool and vital deterrent.”

“Unfortunately, we face a reality of an increasing number of robberies, weapons trading, drug trafficking and violence,” Arbel said, noting that the state had affirmed the increase in violent crime and illegal weapons possession.

“I do not ignore the difficulties inherent in carrying out searches without a warrant,” Arbel continued. “However, in the case of a search carried out with ‘informed consent,’ limited to a person’s body, the violation to privacy is low.”

Danziger agreed with his colleagues on the final ruling, but found that according to the principle of administrative authority, police were not authorized to conduct searches without a warrant, even where consent is given.

The Association for Civil Rights in Israel (ACRI) said on Tuesday that they welcomed the court’s decision to accept the appeals. However, it regretted that the court had “left the door open for similar physical searches in the future,” citing cases where police had no legal authority to conduct searches, but asked citizens to consent.

ACRI attorneys Avner Pinchuk and Lila Margalit said they agreed with Danziger’s position that searches “by consent” are unlawful.“When a police officer asks a citizen to empty his pockets, the possibility of voluntary consent is purely theoretical, as per the court’s position,” Pinchuk said.

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