President (ret.) D. Beinisch
Before us are three petitions for leave to appeal three judgments, which share a common legal question as to the admissibility of real evidence obtained in the course of searches claimed to be unlawful. These questions arise against the background of the case-law exclusionary doctrine enunciated in CrimA 5121/98 Yissacharov v Chief Military Prosecutor, IsrSC 61(1) 461 (2006) (hereinafter: Yissacharov). Two of the judgments addressed by the petitions were handed down by the Haifa District Court (Deputy President S. Berliner, Deputy President Y. Grill, and Judge B. Bar-Ziv), and concerned offences under the Dangerous Drugs Ordinance [New Version], 5733-1973 (hereinafter: the Drugs Ordinance), while the third judgment was handed down by the Tel Aviv District Court (Deputy President Z. Hammer, and Judges U. Vogelman and T. Shapira), and concerned the offence of unlawful possession of a knife, under s. 186 of the Penal Law, 5737-1977 (hereinafter: the Penal Law).
We decided to grant leave to appeal in all three cases, and to consider the petitions as appeals on the merits in all that regards the common legal question that they raise, and regarding which the parties brought various arguments. Before addressing the legal questions that arise in the cases before us, we will briefly describe the chain of events in each of the cases.
(hereinafter: the Ben Haim case)
On 28 May 2007, at 8:15 AM, two policemen and a policewoman, on routine patrol in the Neve Shaanan neighbourhood of Tel Aviv, noticed the petitioner and asked him to identify himself. Upon enquiry, they found that the petitioner was “not wanted” (that is, there was no outstanding warrant for his arrest), but that he did have “some criminal record”. At that point, one of the officers requested that the petitioner empty his pockets. The petitioner obliged, and the knife he was carrying was discovered. At that point, the petitioner was informed that he was being detained for possession of a knife, and he was taken to the police station. Thereafter, information was filed against the petitioner, in which he was charged with the offence of unlawful possession of a knife.
In its decision from 13 January 2009, the Tel Aviv Magistrates Court (Judge D. Mor) acquitted the petitioner of the charge against him, holding the search to be illegal, and therefore, the knife found in the course of that search was inadmissible as evidence. The court held that there had been no reasonable suspicion that the petitioner was hiding a prohibited object, as required under s. 29 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 (hereinafter: the Criminal Procedure Ordinance, or the Ordinance). In this regard, the court noted that, in his testimony, the officer who ordered the petitioner to empty his pockets claimed that the petitioner showed “several suspicious signs”, but he did not elaborate as to the nature of those suspicious signs. The court added that it would appear that the officer was referring to the petitioner’s criminal record, but then cited with approval another judgment of the Magistrates Court in which it was held that the mere existence of a criminal record does not justify a non-consensual search of a person, and that a relevant criminal record can support a suspicion only when there is some other evidence that arouses that suspicion. Having arrived at the conclusion that the search was conducted without legal authority, the court went on to hold that the petitioner’s consent to the search did not render it lawful, inasmuch as, under the circumstances, the officer had no authority to request that the petitioner agree to a search. In this regard, the court noted that the petitioner probably had no knowledge of his right to refuse to be searched, and that the officer who ordered him to empty his pockets did not inform him of that right. The court further noted that conducting a search of a person innocently strolling down the street constitutes “harassment” under the Protection of Privacy Law, 5741-1981 (hereinafter: the Privacy Law), and added that, under s. 32 of the Privacy Law, material obtained by an infringement of privacy is inadmissible as evidence in court. In view of its finding that the knife that was in the possession of the petitioner was seized unlawfully and without authority, the court further held that the knife was inadmissible as evidence, in accordance with the case-law exclusionary doctrine established in the Yissacharov case. The court noted that the unlawful search in which the knife was found was not a mere technical breach of the law, but rather it constituted a real, significant infringement of the petitioner’s rights. The court added that although the knife constituted real evidence, and as such, its existence is distinct from the unlawfulness involved in obtaining it, in this case, the defect in obtaining the evidence cannot be separated from its probative value. As for the ramifications of excluding evidence for the achievement of justice in the broad sense, the Magistrates Court noted that, in the instant case, we were not concerned with a crime that involved a victim, or with a serious offence, and that the petitioner did not even imagine that he was breaking the law by carrying that small knife. As opposed to this, the court continued, it was time for the courts to apply the exclusionary doctrine when members of the police repeatedly err in the execution of their authority, while time and again infringing civil rights.
In its decision of 7 July 2009, the Tel Aviv
District Court granted the state’s appeal of the
Magistrates Court’s judgment, and convicted the
petitioner of the offence of which he had been accused. The District Court did
not decide upon the question of the lawfulness of the search, holding that even
if it were assumed that the search was unlawful, the knife should not have been
excluded as evidence. In this regard, the District Court pointed out that the
Yissacharov rule did not adopt the “fruit of the
poisonous tree” doctrine, but rather granted the court discretion in regard to
the exclusion of illegally obtained evidence. In this regard, the District Court
noted that the harm to the petitioner – even if the search was unlawful – was
minor, adding that it is doubtful whether the search conducted in this case
actually constituted a “search” within the meaning of the Ordinance, inasmuch as
none of the police officers touched the petitioner or his clothing, the
petitioner took the knife out of his pocket by himself, and there was no
physical violence or verbal abuse involved. The court further added that the
police did not maliciously act to harm the petitioner, and they did not
knowingly seek to perform any illegal act. The lower court further noted that
the nature of the evidence obtained is also of significance, and in the instant
case, the knife is real evidence, thus no flaw can be found in its probative
value and its independent existence as evidence. In addition, the court
emphasized the severity of the offence of possession of a knife, and on that
basis concluded that the social cost of excluding the evidence in deference to
the petitioner’s interest was disproportionate to the harm to the public
interest, and the undermining of public trust in the courts and law enforcement
if the evidence were excluded. On the merits, the District Court pointed out
that the petitioner had admitted to possessing the knife both in his response to
the court and in his police statement. The court noted that under s. 186 of the
Penal Law, the petitioner bore the burden of proving that he possessed the knife
for a lawful purpose, but he chose not to testify and did not meet that
evidentiary burden. In his police statement, the petitioner stated that the
knife was intended “for little things like peeling oranges, and the like”, but
the District Court noted that a defendant’s out-of-court statements could not
serve as evidence in his defence. The case was remanded to the
Magistrates Court for sentencing, and the petitioner
was sentenced to a six-month suspended sentence, and a fine of 500
In the petition for leave to appeal, submitted on the petitioner’s behalf by the Public Defender, we are asked to address three legal issues that, according to the defence, are of significance beyond the individual interests of the parties.
The first issue raised by the defence is that of the lawfulness of the search performed by the police in this case. It is averred that in the absence of a source of legal authority for conducting a search, or for the possibility of conducting a consensual search, the consent of the person searched cannot qualify it as lawful. It was furthered argued, in this regard, that conducting a search without consent runs contrary to the principle of legality of the administration, and may thus be seen as a void act. It is argued that in the present case, the police had no basis for a reasonable suspicion, as required under s. 29 of the Criminal Procedure Ordinance, and therefore, the search was unlawful. The defence further argues that even if consent could render an unauthorized search lawful, it must be an informed consent, given with the knowledge of the consenting party of the possibility of refusing consent, and only after being expressly informed of that right in writing. In this regard, it is claimed that, usually, when a police officer approaches a person and asks him to agree to a search, that person thinks that the police officer is acting in his legal capacity, and that refusal to cooperate may have harsh results from his perspective. The defence further points to various statutory provisions that require the written consent of the person being searched as a condition for that search. In the instant case, it is argued, not only was the petitioner not informed of his right to refuse the demand to search his pockets, but even the policemen themselves were unaware of that right.
The second issue addressed by the defence is the question of the exclusion of evidence on the basis of the Yissacharov rule. The argument, in this regard, is that the Yissacharov rule should be applied to real evidence obtained by an unlawful search, in general, and in regard to the offence of possession of a knife, in particular. It is argued that in terms of the degree of unlawfulness, a distinction should be drawn between a breach of a guideline regarding the manner for conducting a search, and a breach in regard to the conducting of the search itself. In the case of the petitioner, it is argued, there was no legal basis for the authority to conduct a search, and there was no reasonable suspicion whatsoever in regard to the petitioner. The defence further argues that the fact that the police acted in good faith does not detract from the severity of the breach in this case, inasmuch as we are not concerned with an isolated breach of the search rules, but rather with an example of a breach of the rules that is repeated over and over again by the police. The defence further argues that a distinction must also be drawn between a situation in which the physical evidence would have been discovered even without the adoption of unlawful means, in which case there will be a greater tendency to admit the evidence despite the breach of law, and a situation in which the evidence would not have been discovered were it not for the unlawful act, in which, it is argued, the tendency will be exclude the evidence. Additionally, the defence argues that in terms of the social utility of excluding the evidence, the illegal possession of a knife constitutes a preventative offence that should not be viewed as a serious crime in accordance with the criteria established in the Yissacharov case. In this regard, the defence refers to cases decided by this Court in which evidence was excluded even in regard to defendants accused of manslaughter and murder. Thus, the defence further urges that, in view of the seriousness of the breach in conducting an unlawful search, the fact that finding the knife was inextricably tied to that unlawful act, and the fact that possessing a knife is a relatively minor offence, admitting the knife into evidence constitutes a substantive, disproportionate infringement of the right to due process.
The third issue raised by the defence concerns the possibility of excluding the evidence on the basis of s. 32 of the Privacy Law, which establishes that material obtained by an infringement of privacy is inadmissible as evidence in court.
(hereinafter: the Jibli case)
The petitioner was accused of possession of a
dangerous drug under s. 7(1)(c) of the Drugs Ordinance, for the possession of
0.2908 net grams of Buprenorphine. The drug was found in the course of a search
conducted on 5 April
The petitioner’s appeal of his conviction and
sentence was denied by the Haifa District Court on 10 December
In his petition for leave to appeal, the petitioner – who is also represented by the Public Defender – raises various arguments in regard to the legality of the search conducted in his mother’s home, and to the possibility of excluding real evidence unlawfully obtained. The defence notes that the search conducted in the mother’s home on 5 April 2006 was based upon intelligence that the police obtained on 16 March 2006. It is not contested that, in view of the time that elapsed from the time the intelligence report was received, there was no basis for conducting a search without a search warrant in accordance with the provisions of s. 28(1) of the Drugs Ordinance, and s. 25(1) of the Criminal Procedure Ordinance, inasmuch as the felony grounding the search had not “recently been committed”. The State based the police authority to conduct the search in the home of the petitioner’s mother on his mother’s consent to the search, and therefore, in its petition, the defence focuses its arguments primarily upon the significance of that consent. In this regard, the defence raises arguments similar to those that it raised in regard to the Ben Haim case, both in regard to the claim that consent cannot confer legitimacy upon a search conducted without legal authority, and in regard to the need for informed consent to the conducting of the search, given with awareness of the right to refuse consent as a precondition to the legality of the search (this, of course, assuming the acceptance of the State’s claim that consent can confer legitimacy to a search that lacks any other legal basis). As far as this case is concerned, the policeman who conducted the search testified that he does not regularly inform people that they have a right to refuse consent to the search, and added that had the petitioner’s mother refused to allow the search, the police would have waited at the entrance to her house until they received a warrant from the court. Under the circumstances, it is argued, the petitioner’s mother had no real possibility of withholding consent to the search, and her consent cannot be described as informed, inasmuch as she did not know that she could refuse.
Another question raised in the petition for leave to appeal is that of who may grant consent to the search of a residence. The defence argues that the Magistrates Court and the District Court erred in addressing this question exclusively in terms of property rights. It is argued that the fact that the petitioner resided with his mother at the relevant time did not confer upon his mother authority to waive his right to privacy before the police in his absence.
As for the exclusion of the evidence (the drugs) that was acquired as a result of the search, the principled arguments are similar to those raised in the Ben Haim case in all that regards the applicability of the Yissacharov case to real evidence, and to balancing the various, relevant considerations. As far as this case is concerned, the argument is that the search was seriously flawed, and that the police acted in bad faith in failing to file a request for a warrant, even though it had the relevant intelligence twenty-one days before the search, preferring to carry out a warrantless search in the home of the petitioner’s aged mother, while the person conducting the search expressly admitted in his testimony: “I would not tell a person that he can refuse”. Under the circumstances, it is argued, the evidence should be excluded under the criteria established in the Yissacharov case. In addition, the defence raised arguments in regard to the concrete evidence in the case.
LCrimApp 5758/10 Ayash v State of Israel
The petitioner was charged in an information filed with the Acre Magistrates Court with the offence of possession of drugs not intended for personal use, under ss. 7 (1) and 7 (3) of the Drugs Ordinance. The charge was brought after a search of the house in which he resided with his wife, conducted on 18 September 2008, uncovered 734 pills that the State claims are MDMA. In its judgment of 17 June 2009, the Acre Magistrates Court (Judge Z. Salah) convicted the petitioner as charged. The search in which the drugs were found was conducted on the afternoon of 18 September 2008, as a result of an intelligence report received the night before. The court further held that no defect arose from the fact that the search was conducted without a search warrant, inasmuch as s. 25 of the Criminal Procedure Ordinance permits a police officer to search a place without a warrant if “he has reason to believe that a felony is being committed, or has recently been committed, therein”. In its judgment, the Magistrates Court held that, in view of the short period of time that had elapsed between receiving the intelligence report and the conducting of the search, the police were authorized to conduct the search without a warrant. This was so because drug possession is an ongoing offence, and because less than a day had passed between receiving the intelligence and conducting the search, such that the condition of the felony being “recently” committed was met. Moreover, on the basis of the testimonies of the police officers, which it found to be credible, the Magistrates Court further held that the petitioner had consented to the search. In this regard, the Magistrates Court noted that a search report was filled out, that it was signed by the petitioner’s wife, and that it stated that the search had been conducted with the consent of the occupant. The court further held that no defect arose from the fact that the search was conducted without the presence of witnesses, inasmuch as the petitioner preferred that the search be conducted without witnesses, as was his prerogative under s. 26 of the Ordinance. In light of its finding that the search in which the drugs were found was lawful, the court held that there was no need to consider the question of excluding the pills as evidence, but it added that even if the search had been unlawful, the pills would not be excluded under the Yissacharov rule. This was so because even if there was a defect, it was minor, the evidence was independent, and an acquittal of the petitioner due to an exclusion of the evidence would be a severe result that would harm the public interest. An additional question addressed by the Magistrates Court in its judgment was whether it was sufficient that the State checked two of the 734 pills found in the search in order to ascertain that all the pills were composed of the dangerous drug MDMA. In this regard, the court held that it was sufficient that a sample test was conducted in accordance with the Dangerous Drugs (Sample Testing of Drugs) Regulations, 5751-1991. It also held that the pills were MDMA on the basis of the expert testimony brought by the parties. It should further be noted that the Magistrates Court rejected the petitioner’s claim that he did not know that the pills in his possession were dangerous drugs.
sentenced the petitioner to four years imprisonment, and a three-year suspended
sentence. It also activated a two-year suspended sentence from a previous
conviction, to be served consecutively to the term of imprisonment imposed by
the court (it should further be noted that because the petitioner was convicted
while on probation, an additional year-and-a-half deferred sentence was
reinstated due to the revocation of his probation). In addition, the
Magistrates Court imposed a fine of
The petitioner’s appeal of his conviction was denied by the Haifa District Court on 29 April 2010. The District Court found no grounds for intervening in the trial court’s findings in regard to the petitioner’s consent to the search. In this regard, the District Court observed that the very fact that the police requested the petitioner’s consent to the search shows that he was aware of the possibility of refusing to allow the search. The District Court further noted that even if there was some defect in the conduct of the search, the drugs would not be excluded as evidence, for reasons similar to those given by the Magistrates Court in that regard. The District Court also found no grounds for intervening in the trial court’s findings in regard to the appropriateness of the sample testing, or the finding that the pills were MDMA. It also rejected all the other arguments raised by the defence. The District Court also saw no reason to intervene in the sentence imposed upon the petitioner, other than cancelling the fine, in view of the long period of imprisonment imposed upon him and his personal circumstances.
In his petition for leave to appeal, the petitioner – who is also represented by the Public Defender – raises various arguments in regard to the conduct of the prosecution in his trial, the methods used for identifying and testing the pills found in his possession, and the lawfulness of the search in which the pills were seized. The defence also presented arguments in regard to the proper construction of ss. 80 and 165 of the Criminal Procedure Law [Consolidated Version], 5742-1982, which treat of rebuttal evidence brought to refute contentions by the defence that the prosecution could not have foreseen. In regard to the search in the course of which the pills were discovered, the defence argued that the case raises a question as to the construction of the term “recently” in s. 25 of the Criminal Procedure Ordinance, inasmuch as it was the position of the defence that the police had sufficient time to request that the court issue a search warrant on the morning following the receipt of the intelligence report, and prior to conducting the search. Another question that the defence felt should be decided in this case is whether the consent of all the persons occupying and present on the premises is necessary in order to conduct a search, or whether it is sufficient to obtain the consent of one of them. In this regard, it was argued that the petitioner’s wife resided in the apartment in which the search was conducted, and held full ownership rights in the premises, yet the police requested only the consent of the petitioner, and did not ask for his wife’s consent, although it is argued that she did not agree to the search. The defence further argued that the wife’s signature on the search report does not prove that she agreed to the search.
In this case, as well, the defence argued that consent to the conducting of a search must be informed consent. It should be noted that the attorney for the defence did not deny that the petitioner gave his consent to the search, but rather argued that it was defective in that the petitioner and his wife were not informed that they were not obliged to agree. Under the circumstances, it was argued, the principled question arises as to the admissibility of real evidence obtained in the course of an illegal search, as it also arises in the Ben Haim case and the Jibli case.
The State’s response to the petitions for leave to appeal
The State opposes granting leave to appeal in all three of the cases before us. It argues that forthcoming legislation addresses the issue of search authority that arises in the three petitions, and there is, therefore, no need to consider the question by way of granting leave to appeal to this Court. In this regard, the State notes that the District Court refrained from deciding the question of the lawfulness of the search in the Ben Haim case, and there is, therefore, no justification to address it in a third legal instance. On the merits, the State argues that it is doubtful whether the incident in which the petitioner in the Ben Haim case consensually emptied his pockets by himself constitutes a “body search” under s. 22 (1) of the Criminal Procedure Ordinance. The State further argues that even if it was a search, the infringement of the autonomy of the subject of the search was minimal.
The State further argues that the law does not prohibit a police officer from carrying out a consensual search, and that when a person agrees to a search, it is not necessary to act contrary to that consent and prohibit the search. In this context, the State adds that imposing a prohibition upon conducting a consensual search would constitute a form of paternalism that is inconsistent with the autonomous will of the individual who is ready to waive his rights under certain circumstances. The State also argues that prohibiting consensual searches would undermine enforcement, and lead to a more dangerous and more violent society. The State adds that it does not disagree with the premise that in giving consent to a search, a person must be aware of his right to refuse. However, in its view, it is not necessary to ascertain the existence of such awareness by means of forms, or by an express statement of the right to refuse, inasmuch as it may be assumed that when the average person is asked to permit a search and consents, he understands that the conversation is not pointless. In regard to the search of premises, which arises in the Jibli case and the Ayash case, and for similar reasons, the State argues that the consent of the occupant of the premises to be searched, provided that it is informed consent, suffices to permit the search, even without a warrant. In its view, requiring an application to a court even when the occupier of the premises agrees to the search would unnecessarily burden the courts, the police and the occupant of the property, and might even undermine the effectiveness of the search. In this regard, the State adds that nothing prevents the occupant from permitting the search of parts of his apartment that are used by other people. It argues that the law recognizes the occupant of the property as authorized to exercise his discretion in regard to a search of his home, and in regard to those who enter his home, and there is, therefore, no need for the consent of every person using the premises in order to conduct a search. In this regard, the State argues that the petitioner in the Ayash case, and the mother of the petitioner in the Jibli case, knowingly agreed to the conducting of the searches, and there were, therefore, no defects in the searches. Moreover, the State argues that in the Ayash case, the police had authority to conduct the search even without a warrant.
The State further argues that there is no cause for granting leave to appeal on the question of criteria for excluding real evidence obtained in the course of an unlawful search. According to the State, the Yissacharov decision established clear tests for deciding upon the exclusion of evidence, and inter alia, it addressed the affect upon real evidence in a concrete manner. Under the circumstances, it argues, the petitions before the Court merely concern the application of the Yissacharov case in concrete situations, and there is, therefore, no justification for granting them. The State further argues that in light of the importance of the evidence, the severity of the offences with which the petitioners were charged, and the insignificant violation of their right, if any, to due process, the relative weight of harm and good to be achieved by exclusion tilts the scale away from exclusion.
It should further be noted that the State argues that leave to appeal should not be granted in regard to the additional arguments raised by the petitioner in the Ayash case, which do not touch upon the lawfulness of the search, but rather concern the evidence brought at trial.
It is also important that we mention that the
Association for Civil Rights in
As earlier stated, we have decided to grant leave to appeal in the petitions before us, and to treat the petitions as appeals, but only in regard to the question of consensual search and the admissibility of evidence obtained as a result of a search grounded exclusively upon consent. Therefore, we must first consider the lawfulness of the searches conducted in the various cases before us. If we find that those searches were conducted unlawfully, we will continue to examine the question of exclusion of the evidence obtained by them.
The question before us is of significant legal and public importance, and it arises again and again when searches are conducted solely on the basis of consent. In the matters of Ben Haim and Jibli, there is no disagreement as to the fact that the police had no source of legal authority for carrying out the searches other than consent. It should further be noted that we did not see fit to accept the State’s argument that we can suffice with the expectation of a forthcoming statutory arrangement of searches as a reason to deny the petitions for leave to appeal. This is so, both because the legislative process is still in its earliest stage, and because in the memoranda of the draft bills presented for our perusal, there is a no express consideration whatsoever of the possibility of grounding the authority to conduct a search solely upon the consent of the person who is the subject of that search. The petition for leave to appeal in the Ayash case raises additional, different questions, but they cannot be addressed jointly with the two other petitions, and moreover, we saw no reason to address them on the merits.
Before we address the question common to all three of the petitions before us, we will first, briefly examine the normative framework that regulates searches in Israeli law, and the search authority granted to members of the Israel Police. The detailed regulation of search authority in assorted statutes is intended to serve two, parallel purposes. On the one hand, it is intended to enable the police to function properly in enforcing the law and apprehending offenders, and thereby, it serves the purpose of protecting personal safety and public order in the State. On the other hand, the detailed legislative regulation is intended to set limits upon the use of police powers that inherently involve the infringement of various human rights and personal liberties. The range of authority granted to the police, in general, and its authority to conduct searches, which is the subject of the petitions before the Court, in particular, are an expression of the balance struck by the legislature between the public interest in the effective functioning of the police and the need to protect the human rights of the citizens with whom the police comes into contact. The primary duties of the police are defined under s. 3 of the Police Ordinance [New Version], 5731-1971 (hereinafter: the Police Ordinance), as follows:
This general definition of the duties of the police forms the basis for establishing the specific powers and duties of police, which are to be found spread among various statutes. Thus, for example, in the matter of the authority to conduct a search, s. 5 (5) of the Police Ordinance states:
In addition to the provisions of the Police Ordinance, the search authority is also addressed in other statutes that relate to different types of searches. Thus, for example, Chapter Three of the Criminal Procedure Ordinance (ss. 23-31 of the Ordinance) sets out the manner in which to search a house or other premises. One of the important provisions established in this framework is found in s. 25 of the Ordinance, which sets forth the circumstances in which a police officer is authorized to conduct the search of a specific place without a search warrant:
Another important provision found in the Criminal Procedure Ordinance concerns the authority to conduct a search of a person in the course of a search of some premises. Section 29 of the Ordinance states:
Section 3(b) of the Authority for Maintaining Public Safety Law, 5765-2005 (hereinafter: the Public Safety Law), provides an additional source of authority for conducting a search without a warrant:
A review of the various provisions relating to the authority to conduct a body search without a judicial warrant shows that such authority is conditional upon the existence of a reasonable suspicion that the person unlawfully possesses some item that is the object of the police search. The minimal evidentiary requirement of a reasonable suspicion is a common denominator to all the statutory provisions granting the police authority to conduct a search upon a person’s body without a judicial warrant (while s. 25(1) of the Criminal Procedure Ordinance establishes a test of a “reason to believe” for conducting a search of a place). The reasonable-suspicion test is, essentially, an objective test by which the court is called upon to assess the reasonableness of the discretion exercised by the police officer who conducted the search in order to decide upon its lawfulness. However, the conditions under which there would be a reasonable suspicion that would justify a search without a warrant cannot, by their very nature, be defined comprehensively and unequivocally. The application of this test depends on the specific circumstances of each and every case, upon the information that the police officer had at the time of the search, and even upon the professional experience and discretion of the police officer who conducted the search (see and compare: HCJ 465/75 Dagani v Police Minister, IsrSC 30 (1) 337, 349-353 (1975) (hereinafter: the Dagani case)). The subject of the conditions required to ground a “reasonable suspicion” that would justify a search without a search warrant does not actually need to be decided in the cases before us, inasmuch as the State does not base its arguments in regard to the authority to conduct any of the searches solely upon the existence of a “reasonable suspicion” in regard to any of the petitioners.
Therefore, although not required, we will point out a number of criteria that may, under appropriate circumstances, ground a reasonable suspicion regarding a particular person, as required by the legal provisions mentioned above, and justify conducting a search of the effects or the person of such an individual, without a warrant. In this regard, we can point out circumstances that can give rise to grounds for a search only when they form part of an overall situation, and circumstances that can, in and of themselves, constitute grounds for a reasonable suspicion. Thus, among other things, one might point to the suspicious behaviour of a person who is the potential object of a search, to information regarding the perpetration of a crime at or near the place where the person is situated, together with the time that he is at that place. Similarly, a reasonable suspicion that would justify a search without a warrant might arise when the police receive a description of a person suspected of committing a specific offence, or information about where such a person may be found. In such circumstances, the information may lead to a reasonable suspicion that would justify searching a person whose features match the description, or who is located in the place identified. Of course, these criteria are not exhaustive, and one can assume that other criteria will be recognized in case law over time. Nevertheless, we should note, parenthetically, that the existence of a criminal record alone, independent of the concrete, external circumstances, does not, itself, give rise to a reasonable suspicion authorizing a police officer to conduct a search of an individual’s effects or person without a judicial warrant.
It is also important to note that additional, detailed provisions governing searches can be found in the Criminal Procedure (Powers of Enforcement – Body Search of a Suspect and Obtaining Means of Identification) Law, 5756-1996 (hereinafter: the Powers of Enforcement Law). In the Powers of Enforcement Law, the legislature regulated the manner for conducting an “external search” and an “internal search” of a person’s body. Both of these types of searches relate to collecting physical evidence from a person’s body, and therefore, as a rule, involve a greater infringement of the right to privacy than searches conducted upon a person’s body, in his effects, or in his home, which are the types of searches grounding the petitions before us (see, in this regard: CrimApp 1641/04 Levin v State of Israel, IsrSC 59 (3) 785 (2004)).
Having briefly surveyed the normative framework regulating the conducting of searches upon a person’s body or in his home without a search warrant, we can now focus upon the questions that arise in the petitions for leave to appeal before the Court.
Can consent serve as a source of authority for conducting a search?
The petitioner in the Ben Haim case, as may be recalled, happened upon three police officers on routine patrol, and was asked to identify himself. After checking over the radio, and being informed that the petitioner was “not wanted” but that he had “some criminal record”, one of the police officers asked him to empty his pants’ pockets. The petitioner complied, and the knife that he was carrying was discovered. There is no question that if the police officer had reasonably suspected that the petitioner was carrying a knife, he would have been legally authorized to conduct a search of the petitioner’s person without a warrant, in accordance with s. 3(b) of the Public Safety Law cited above. In this regard, we would note that s. 29 of the Criminal Procedure Ordinance, in light of which the Magistrates Court examined the lawfulness of the search, requires that the person being searched be “reasonably suspected of concealing with him any article for which search is being or may be made” as a condition for the search. However, in the case before us, the State does not maintain that there was a suspicion that the petitioner in Ben Haim was carrying a knife (or any other prohibited object). At most, upon seeing the petitioner, the policemen had apprehensions or doubts, but nothing that amounted to a “reasonable suspicion”. Therefore, the State’s claim of authority to conduct the search is based upon the petitioner’s consent, which was expressed by his willingness to empty his pockets, as described above.
The question is, therefore, whether the very fact that the petitioner emptied his pockets by himself, at the request of one of the police officers, without the policemen having to do it themselves, removes the conduct from the scope of a “ body search upon a person”, which is defined in s. 3(d) of the Public Safety Law as follows: “a search upon the surface of a person’s body, his clothing or effects, which is not an external search or an internal search as defined in the Criminal Procedure (Powers of Enforcement – Body Searches and Obtaining Means of Identification), 5756-1996.” It is important to note that the definition of the term “body search upon a person” is a residual definition that also applies to other statutes (see, e.g.: s. 22(a) of the Criminal Procedure Ordinance, which treats of conducting a body search of an arrestee or prisoner being taken into legal custody, and s. 12(g) of the Witness Protection Law, 5769-2008, in regard to the authority of security guards acting under that law). Indeed, when the search is performed by a policeman, the level of the infringement of the suspect’s protected right is higher than when he empties his own pockets. However, the very fact that a person assists the search by acting at the behest of a police officer does not remove the act from the definition of a “search” as defined by law. That is because a police officer’s instruction that a person empty his pockets is intended to achieve the same objective as a search conducted by the police officer himself – finding a prohibited or dangerous object being carried by the person who is the subject of the search, in circumstances in which the object is “found” in the presence of the police officer, and at his request. Inasmuch as we are, indeed, concerned with a search, the question of the significance of the consent remains.
The question of the significance of consent to a search also arises in the Jibli case, and in the Ayash case. The Jibli case concerned a search in the home of the petitioner’s mother, in the course of which drugs intended for personal use were discovered in the petitioner’s room. The search was carried out some three weeks after the relevant intelligence report was received. The source of authority for such a search is to be found in s. 25 of the Criminal Procedure Ordinance, which states, as earlier noted, that one of the conditions for conducting a search of a house without a warrant is that the police officer “has reason to believe that a felony is being committed, or has recently been committed, therein”. However, the State does not rely upon the provisions of that section in regard to the search in the Jibli case, inasmuch as, due to the time that elapsed between receiving the intelligence report and the search, the information could not be seen to meet the condition of being “recently” obtained. Under the circumstances, the consent of the petitioner’s mother to carrying out the search in the Jibli case is the only source of authority upon which the State can ground its claim in regard to the lawfulness of the search. As opposed to this, in the Ayash case, the search of the petitioner’s home, in the course of which the drugs were found, was conducted less than 24 hours after receipt of the relevant intelligence report. Therefore, in the Ayash case, the State grounds the lawfulness of the search both upon the petitioner’s consent to the search, and upon fulfilling the condition in s. 25 of the Criminal Procedure Ordinance in regard to a felony committed “recently”.
In this regard, we would note that the question of the construction of the term “recently” has arisen before the Court in the past, in regard to a police officer’s authority to arrest a person without a warrant if “such person has committed in his presence, or has recently committed, an offence punishable with death or imprisonment for a period exceeding six months”, as formerly established under s. 3(3) of the Criminal Procedure Ordinance. In that regard, this Court held:
The term “recently” has the effect of limiting the police officer to actions that are proximate in time to the occurrence of the offence, and that proximity is measured .... in hours rather than days.
See the Dagani case, at p. 364; and see: CrimApp 325/84 Abergil v State of Israel, IsrSC 38 (3) 365, 369 (1984).
Indeed, the authority to conduct a search where a felony has “recently been committed” is intended to allow the police to respond immediately to the need to gather evidence that might otherwise be lost or destroyed with the passage of time, as well as to ensure public safety where some dangerous object is located at that place. In order to achieve these objectives, a search can be conducted, by virtue of this authority, without a judicial warrant, as held in the above case law, within a period of hours from the receipt of the relevant information, and not within a timeframe of days. As opposed to this, when a more significant period of time has passed from the receipt of the relevant information, the above objectives are weakened, and the preferred procedure for conducting a search is by way of applying to the court for a warrant in accordance with s. 23 of the Criminal Procedure Ordinance. In this regard, it should be noted that, as a matter of course, the importance of the duty to apply to the court as a condition for the lawfulness of the search (when the period of time stipulated by the term “recently” has passed) has increased with the recognition of a constitutional right to privacy in regard to searches, as set forth in s. 7(c) of Basic law: Human Dignity and Liberty.
In light of the above, the question before us is whether the consent of the person who is the subject of the search to the conducting of the search can serve as a basis for authority to search, when there is no other source of legal authority. It should be noted that according to the defence, even if we were to assume that the answer would be in the affirmative under certain circumstances, the examination of the lawfulness of the search would not end there, inasmuch as it would still be necessary to ascertain the nature of such “consent” that would permit the search, and the conditions that would make it possible to say that such consent was actually granted. Moreover, even if we were to find that the searches conducted in the cases before us (all or some) were unlawful – whether because consent, in general, is not sufficient to qualify a search in the absence of another source of authority, or because, in the circumstances of each of the cases before us, the consent was insufficient as given – the question of the exclusion of the evidence obtained by the searches would still remain, in accordance with the case-law exclusionary doctrine enunciated in the Yissacharov case. That is so, in view of the approach adopted in the Yissacharov case, which we will discuss further on, according to which, even if there was some measure of illegality involved in obtaining some particular evidence, that does not, in and of itself, necessarily lead to the exclusion of the evidence so obtained.
I will state at the outset that I am of the opinion that when a person is himself the subject of a search, or when the police seek to search his home, his informed consent can serve to permit a search even in the absence of any other legal source of authority. In examining the possibility of an individual granting consent to a search, we must view the situation from two perspectives – that of the police officer (or other authorized agent) who wishes to conduct the search, and that of the person whose consent is requested. There is no question that conducting a body search or a search of a person’s home infringes that person’s constitutional right to privacy under s. 7(c) of Basic Law: Human Dignity and Liberty, which states: “No search shall be conducted on the private premises of a person, nor upon or in his body or personal effects.” The protection of privacy in regard to searches is, thus, explicitly recognized in a Basic Law. Indeed, the right to privacy, in its totality, is intrinsically related to the autonomy of the individual and his right to decide who, if anyone, can be exposed to information about him, examine his belongings or touch his body. In this matter, I refer to the apt statement of President Barak in considering the right to privacy:
Indeed, surrounding every person there is a space in which he has a right to be by himself. The space moves with the person. Its scope is an expression of the need to protect the autonomy of the individual.
See: HCJ 6650/04 Anonymous v Netanya Rabbinical Court, IsrSC 61 (1) 581, 606 (2006); and see: APApp 9341/05 Freedom of Information Movement v Government Corporations Authority (19 May 2009) (not yet published) paras. 19-20 of the judgment.
However, that autonomy of the individual, which is the source of the right to privacy, is also what allows the individual to decide to expose himself to a particular person or group of persons, and waive certain aspects related to his right to privacy in regard to those people. In other words, the same personal autonomy that justifies protecting a person’s right to privacy, is also what allows him to waive his privacy in certain circumstances, or in regard to certain people. In this regard, it is important to point out that s. 1 of the Protection of Privacy Law states: “No person shall infringe the privacy of another without his consent.” Thus, even the legislature recognized that consent to an infringement of privacy could permit it.
An encounter between a police officer and a citizen, in which the police officer asks for permission to conduct a body search, or to search that person’s belongings, cannot be viewed solely from the perspective of a consensual infringement of the citizen’s privacy, and exclusively in terms of the protection of privacy rules, which as noted, permit a person to agree to the infringement of his privacy. A search by a police officer is performed on the basis of his governmental authority, and must conform to standards established by the rules of administrative law and the criminal procedure laws, which establish the scope of police authority and the conditions for exercising that authority (as stated above, in paras. 27-35). The principle of administrative legality, long-established in our legal system, requires that an administrative agency (and in this regard, even an individual police officer is an administrative agency) has only that authority granted to it by law, and it may not act without such authority (see: Y. Zamir, Administrative Authority, vol. I, 2nd ed. (2010) pp. 73-82 (in Hebrew)). The importance of the administrative legality principle is even more pronounced when we are concerned with authority that permits the administrative agency to infringe protected human rights, and this is surely the case when we are concerned with the authority of a police officer who is permitted, by virtue of his authority and in appropriate circumstances, to infringe an individual’s most fundamental rights (see: HCJ 5100/94 Public Committee Against Torture v State of Israel, IsrSC 53 (4) 817, 831 (1999); HCJ 682/07 Mana v Tax Authority, (20 Dec. 2010) (not yet published), para. 14 of the opinion of U. Vogelman, J.).
The principle of administrative legality is also expressed in the limitation clause in s. 8 of Basic Law: Human Dignity and Liberty, which states that one of the conditions for the lawfulness of an infringement of a human right guaranteed by a Basic Law (such as the right to privacy) is that the violation be “by a law.... or by under a law as stated by virtue of an express authorization therein” I addressed the subject of the meaning of the requirement for express authorization in HCJ 10203/03 Hamifkad Haleumi v Attorney General (20 Aug. 2008) (not yet published), and in HCJFH 9411/00 Arco Electric Industries v Mayor of Rishon Letziyon (19 Oct. 2009) (not yet published). The objective of this requirement was to restrict the infringement of human rights by means of secondary legislation, and such restriction certainly applies to administrative conduct that infringes human rights and that is not regulated by secondary legislation (see and compare: HCJ 6824/07 above, para. 15 of the opinion of U. Vogelman, J.). This Court has already established in its case law that in ascertaining whether a requirement of express consent has been met in regard to the exercise of some authority that entails an infringement of human rights, various considerations must taken into account, among them the nature of the infringed right, the intensity of the infringement, and the identity of the infringing agency (see: HCJFH 9411/00, above, para. 11 of my opinion). In that decision, I wrote (see, ibid., para. 12 of my opinion):
The more significant the connection between the infringed right and human dignity and liberty, the more socially important the right, and the greater and more comprehensive the impact of the violation upon it, the more strict we will be in our interpretation of the “express authorization” requirement in the circumstances of a concrete case. Accordingly, in circumstances in which we are concerned with a violation that seriously impacts upon a fundamental basic right, we will require clear permission in the authorizing law, which establishes general guidelines for the substantive characteristics of the infringement permitted through secondary legislation. The degree of specificity of the required authorization will be a product of the intensity of the infringement of the protected right, its substance and context.
As far as the cases before us are concerned, it is clear that neither the Criminal Procedure Ordinance nor any other statute expressly addresses the question of a police officer’s authority to conduct a search of a person’s body or home solely on the basis of his consent, and in the absence of any other legal grounds for conducting the search. It would also be hard to deny that conducting a search of a person, his home or his belongings violates his right to privacy – even if the search is consensual. However, it should be borne in mind that when a search is consensual, and that consent is a true consent (we will address the question of the conditions necessary for establishing consent further on), the intensity of the infringement of privacy is mitigated. This is particularly so in light of the close connection we mentioned earlier, between the right to privacy and the autonomy of the individual, which the right to privacy is meant to protect. Indeed, recognition of the possibility of waiving one’s privacy under certain circumstances or in regard to specific people, derives from that same concept of individual autonomy.
We would further note that the cases before us do not concern “external searches” or “internal searches” of a person’s body, as defined by the Powers of Enforcement Law. The conditions for obtaining consent for such body searches of a person who is not suspected of having committed a specific offence are set out in Chapter Six of the Powers of Enforcement Law. The defence argues that this constitutes a “negative arrangement” that implies that consensual searches are prohibited in other cases. The argument is farfetched on its face. Firstly, the types of searches addressed by the Powers of Enforcement Law (whether an “external search” or an “internal search” as defined in the Law) are generally more intrusive than the searches carried out in the circumstances of the petitions for leave to appeal before the Court. Secondly, the special arrangement established under Chapter Six of the Powers of Enforcement Law serves a clearly focused purpose: addressing the need that occasionally arises in the course of the investigation of a specific offence to conduct a search of a person (such as the victim of the offence or witnesses), even though that person is not a suspect.
Moreover, in examining the demand for express consent in regard to a consensual search, we must consider the identity of the agency infringing the right to privacy, and the fact that the request is being made by a police officer acting to enforce the law and protect public safety. In this regard, we would once again note that the powers granted by the Police Ordinance, which we discussed in paras. 27-35 above, are intended to enable the police officer to carry out his functions in regard to crime prevention and apprehending criminals. These functions and powers are granted to police officers in order to promote the broad public interest in protecting public order and the personal safety of the entire public. While the very fact that a police officer acts to achieve those objectives, and for the public good does not allow a police officer to deviate from his authority, it can influence the interpretation of that authority.
Therefore, when we are concerned with a relatively minor infringement of the right to privacy, committed with the consent of the individual whose person, effects or home the police wish to search, the consent of that individual who is the subject of the search can substitute for the requirement of a reasonable suspicion of possession of a weapon, in s. 3(b) of the Powers of Enforcement Law, which states:
Consent to a search can also serve as a substitute for the requirement of “reason to believe” under s. 25(1) of the Criminal Procedure Ordinance, which states:
In light of the character and nature of the authority to conduct a search of an individual’s person, effects or home, where an “invasive” search is not involved, the legislature left the decision to conduct the search to the individual discretion of the police officer. The minimum standard established for that is, as stated, “reasonable suspicion” or “reason to believe”. It should be borne in mind that the decision as to whether that standard has been met is made in the course performing one’s duty, under pressure, and generally under suspicious circumstances, where a judgment as to the intensity of the suspicion must be made on the spot. In such situations, the police officer’s discretion, based upon the information at hand as to the existence of grounds for a search without a warrant, is replaced by the consent of the person to be searched. That consent is an expression of the individual’s autonomous right to agree to an infringement of his right to privacy. In this regard, it should be recalled that under the two legal provisions cited, the authority to conduct a search without a warrant is contingent upon the personal discretion of the police officer, in accordance with the circumstances. Of course, that discretion must be exercised reasonably, and be applied proportionately and equally. Therefore, it would seem that when, in accordance with the police officer’s discretion, in suspicious circumstances that do not amount to a “reasonable suspicion” or “reason to believe”, consent for the search is required for conducting the search, and if such consent is a true consent, given in accordance with the conditions that will be set forth, by the subject of the search, then the search may be carried out, as long a the other conditions established by law for a search without a warrant are met.
The conditions required to constitute true consent to a search
Even if we accept the State’s argument that the consent of the individual to be searched suffices to qualify the search under certain circumstances, even in the absence of “reasonable suspicion” that he is carrying a weapon, or “reason to believe” that he has “recently” committed a felony, nonetheless, we must examine the conditions under which such consent may be deemed true consent. Both the petitioners and the State agree that to the extent that consent can qualify a search in the absence of any other source of authority, it must be an informed consent. In other words, it must be consent given by a person who is aware of his right to refuse the search, and that his refusal will not be held against him. The parties disagree on the questions of when and in what circumstances an individual who is asked to consent to a search can be said to have the required awareness of the right to refuse the search. The defence argues that a police officer who wishes to conduct a consensual search must expressly explain to the individual who is asked for consent that he has the right to refuse to be searched, and that his refusal will not be held against him. The defence further argues that this notice of the right to refuse must be made in writing, as that is the only way to ensure that the individual was made aware of his right. As opposed to this, the State argues that the individual can infer his right to refuse to be searched from the very fact that the police officer is requesting his consent, as he surely realizes that the police officer is not merely making small talk.
The States argument that an individual’s awareness of his right to refuse can be inferred from the very fact of the request is overly far reaching. In view of the inherent power imbalance in the relationship between the police and the individual, it is not enough that the person to be searched be asked for his consent in order for him to know that he has the right to refuse to be searched, and for his assent to be deemed informed consent. Firstly, the very asking of consent does not necessarily imply that the individual has a right to refuse. For example, it may be assumed that it is often the case that even when the police are authorized to conduct a search without a warrant, and without the consent of the person to be searched, the request will nevertheless be made, if only to lessen the potential for a confrontation regarding the search, and to avoid the use of unnecessary force against the individual. Indeed, the invasion of a person’s privacy is more proportionate when his consent is requested, even if it is possible to conduct the search without consent. An expression of this approach can be found in s. 2(c) of the Powers of Enforcement Law, which concerns internal body searches, which involve a greater infringement than the searches we are considering, and states that “no search shall be made in a person’s body without asking his consent....”.
Secondly, it may be assumed that, as a rule, when a police officer requests an individual’s consent to a search, that person will assume that the police officer is acting within his authority, and he will not tend to stand up for his rights. Moreover, it may be assumed that it is often the case, particularly in regard to normal, law-abiding citizens, that the very encounter with a police officer who wishes to perform a search of his person, effects or home is fraught with emotional distress and worry, which may make that person reticent to insist upon his rights, even if he knows them. Indeed, it can generally be said that in the circumstances in which an individual comes into contact with a police officer who wishes to search his person, effects or home, that individual’s main desire is to bring the encounter to an end as quickly as possible. Under such circumstances, a person may well believe that his refusal to consent to the search may lead to his being detained or arrested, or at the very least, raise some suspicion about him. Consent given under such circumstances, which entails waiving the constitutional right to privacy before the police officer requesting to conduct the search, is not an informed consent, inasmuch as it is not an expression of a real, autonomous choice by the individual to waive his rights (see and compare: HCJ 3799/02 Adalah – Legal Centre for Arab Minority Rights in Israel v IDF Central District Commander, IsrSC 60 (3) 67, 86 (2005)).
Therefore, in order to ensure that consent to a search is a true consent, and not based upon the power imbalance inherent to an encounter between the police and a citizen, the police officer requesting the citizen’s consent to a search must explain to him, when relevant, that he has the right to refuse to submit to the search, and that his refusal will not be held against him. Under such circumstances, the citizen’s consent to the search will be deemed informed consent that can serve to allow the infringement of his constitutional right to privacy that attends the search. We would further stress that we are concerned with cases in which the citizen’s consent is the exclusive source of authority for the search. In light of the fact that this source of authority is not expressly anchored in statute, and in view of the infringement of constitutional rights caused by carrying out the search, we are obligated to ensure that consent to the search be true a consent based upon the citizen’s informed decision to permit it.
The State argues that ensuring such awareness of the right to refuse the search does not require that the police officer make use of written forms or that he “declaim” the right to refuse consent to the search. In the State’s view, it is sufficient that the enforcement agencies and the courts examine the circumstances of the case before them to ascertain whether informed consent was given for the search. I do not think that we can adopt the State’s sweeping position. In view of the power imbalance and the information gap that are intrinsic to the encounter between a police officer and a citizen, we cannot make the assumption suggested by the State, according to which the citizen will, in any case, be aware of his right to refuse on the basis of the request for consent, and we certainly cannot assume that he will know that his refusal will not be held against him, if the requesting police officer does not expressly tell him so. Adopting the approach suggested by the State could result in a situation in which there will be more consensual searches of citizens unaware of their rights in comparison to the number of consensual searches of citizens who are aware of those rights, and the infringement of rights will be intensified by the absence of the awareness of rights. Adopting a uniform, equal policy that requires that a police officer requesting to conduct a consensual search inform the citizen of his right of refusal, and that the refusal will not be held against him will, thus, prevent situations in which the privacy of individuals is violated simply because they are unaware of their rights. Moreover, express notice by the police officer of the right to refuse the search, and that the refusal will not bear negative consequences will make it easier for citizens aware of their rights to stand up for those rights and reach an autonomous decision as to whether or not to grant their consent to a search. We would further note that the State did not present persuasive arguments against imposing a duty upon police officers to inform individuals whom they wish to search of their right to refuse. Indeed, it would be hard to come up with such arguments when we are concerned with situations in which there are no clear grounds for conducting a search other than the individual’s consent. A policy requiring that a police officer who wishes to perform a consensual search inform the citizen he wishes to search of his rights will increase the certainty of the police themselves as to the method by which they are meant to obtain consent to a search, and will lessen the possibility of raising arguments against the admissibility of evidence obtained by such searches. A clear statement by the police officer of the right to refuse the search will also limit the need for judicial proceedings on the question of whether, in the specific circumstances of a particular case, the person searched was aware of his right to refuse the search.
The subject of consensual searches and the conditions for the lawfulness of such searches has arisen in other legal systems that are similar to the Israeli legal system, and various approaches have been adopted in this regard. It is, however, important to emphasize that there would appear to be no question as to the very need that a consensual search by the police be subject to certain rules of conduct applying to the police. We will, therefore, briefly review the different positions adopted by other legal systems in regard to the questions arising in the cases before us.
In the United States, the Supreme Court (in a six-to-three majority decision) adopted a lenient position toward the police in regard to consensual searches (see: Schneckloth v Bustamonte, 412 U.S. 218 (1973)). In that case, it was held that although consent can serve as the basis for conducting a search (in the absence of the conditions established under the Fourth Amendment), and although that consent must be knowing and voluntary, the matter of whether there was knowledge and voluntariness is a factual question that must be proven at trial, and is inferred from the totality of circumstances. It was also held that while this matter must be considered, there is no prerequisite that the prosecution show knowledge of the right to refuse. Therefore, the majority held in that case that there is no obligation to inform a person asked for consent to a search of his right to refuse the search. In this regard, Stewart, J., delivering the opinion of the majority, wrote:
Our decision today is a narrow one. We hold only that, when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact .... to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent [and see pp. 248-249 of the judgment].
This position was reiterated in a later decision of the United States Supreme Court, in which it was held that police seeking to conduct a search are not under an obligation to inform the subject of the search of his rights, and that knowledge of the right to refuse the search is not a necessary precondition to a consensual search (see: Ohio v Robinette, 519 U.S. 33 (1996)).
As opposed to the American approach, a
completely different view was adopted in
An officer must not search a person, even with his or her consent, where no power to search is applicable. Even when a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provisions of this Code. The only exception, where an officer does not require a specific power, applies to searches of persons entering sports grounds or other premises carried out with their consent given as a condition of entry.
This provision was added to the police code of practice in 2003, replacing the previous provision of 1995 that required that a police officer inform the subject of a search that the search would not be conducted without his consent (see: M. Zander, The Police and Criminal Evidence Act 1984, 5th ed., (2005) pp. 8-9).
Canada has adopted an intermediate approach to consensual searches. The Supreme Court of Canada addressed the issue of the power imbalance between the police and a citizen in assessing a citizen’s consent to a search while waiving his constitutional rights, and stressed the need for the individual’s complete awareness of his waiver of rights. Thus, in a case concerning the lawfulness of a consensual search of a car stopped for a routine check by the police, the Canadian Supreme Court held, per Cory, J.:
It has been seen that as a result of the check stop the appellant was detained. The arbitrary detention was imposed as soon as he was pulled over. As a result of that detention, it can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer. In those circumstances it is incumbent upon the Crown to adduce evidence that the person detained had indeed made an informed consent to the search based upon an awareness of his rights to refuse to respond to the questions or to consent to the search. There is no such evidence in this case. In my view the trial judge was correct in her conclusion that the appellant felt compelled to respond to the police questions. In the circumstances it cannot be said that the search was consensual.
See: R. v Mellenthin,  3 S.C.R. 615, 624-625; and see: R. v Borden,  3 S.C.R. 145; and more recently: R. v Côté, 2011 S.C.C. 46.
Upon considering the subject in light of our
legal system, and the reality in which the police operate in maintaining public
order, I am of the opinion that we should adopt the intermediate approach in
between the American approach and the British approach, and prefer an approach
much like that followed in
The approach requiring the police to inform citizens of their rights in the course of exercising certain types of authority was adopted by the legislature in various contexts, and is consistent with the approach of our legal system to the protection of fundamental human rights in the framework of police authority. Thus, for example, s. 32 of the Criminal Procedure (Powers of Enforcement – Arrests) Law, 5756-1996, establishes the duty of the officer in charge to explain to an arrested person what his rights are, as follows:
Another example of a legal provision that requires that a police officer inform a person of his rights, and which also requires obtaining a person’s consent to the action the police officer intends to take, can be found in s. 14 of the Powers of Enforcement Law:
These two legal provisions demonstrate the importance that the legislature attaches to express, clear explanation of the rights of a person whom the police wish to subject to its arrest or search authority. Explaining rights is particularly necessary, as one can learn from s. 14 of the Powers of Enforcement Law, where we are concerned with a situation in which receiving the consent of the subject of the search is a condition for carrying out the search, and in that context, the police officer is required to explain to the person whose consent is sought that he has a right not to consent to the search. Clearly informing the individual of his right to refuse the search is, thus, essential to ensuring that the consent to the search is autonomous, and to lessening the violation of the constitutional right to privacy resulting from the search. In this regard, it is interesting to note that in ss. 14B-14D of the Powers of Enforcement Law, the legislature established a detailed arrangement for obtaining consent to a search from minors and the mentally handicapped who are not suspects.
In conclusion, in the absence of any other source of authority, and where circumstances justify it, an individual’s consent to a search of his person, effects or home may serve as an independent source of authority for conducting the search. In such circumstances, consent can substitute for the need for a reasonable suspicion of possessing a weapon, under s. 3(b) of the Public Safety Law, or for the requirement of “reason to believe” that an offence has been committed, under s. 25 of the Criminal Procedure Ordinance. It is generally agreed that the precondition to such consent is that it be true, informed and voluntary. In order to ensure that, it is not sufficient that the subject of the search be asked for his consent to the search, but rather he must be informed expressly of his right to refuse the search, and that such refusal will not be held to his detriment. However, we do not find it necessary to require that such consent be given in writing, as the petitioners argue. The primary purpose grounding the requirement to inform the subject of a consensual search of his right to refuse the search is not to create a formal procedure for conducting searches, but rather to ensure the autonomy of the individual being asked to agree to the search. In order to realize that purpose, it is not necessary that the notice of rights be made in writing, and it would seem that such a requirement might complicate and draw out the search process, which often takes place under pressure or immediate need. On the contrary, a clear, understandable explanation delivered orally in regard to the right to refuse a search, and that refusal will not be held against the person refusing will better serve the need to ensure the sincerity of the consent than a signature on some form or another. We would add in this regard that it would be appropriate that the method for conducting a consensual search be set out in an official police directive that would advise police officers of the scope of their authority to conduct searches, and of the conditions for conducting a consensual search. We are of the opinion that such a directive should state that immediately following a consensual search, the police officer who conducted the search should write a memorandum or record noting the circumstances of the search. Thus, there will be reliable, precise documentation of the search if any future question might arise as to its lawfulness or to the manner by which it was conducted.
The specific application of the general principle
In examining the legality of the “consensual” searches in the cases before us, the required conclusion is that the consent given in each of the three cases for the conducting of a search, and certainly in the matters of Ben Haim and Jibli (in which the consent was given by the petitioner’s mother), was not informed consent. As for the Ayash case, the circumstances show that the petitioner was apparently aware of his right to refuse, but there is no need to decide the matter inasmuch as there were grounds for conducting the search on the basis of the “fresh” information that the police had obtained. The State argues that true consent for conducting the searches was actually given in all three cases. In the Ben Haim case, the State notes that the petitioner’s consent was documented in a memorandum of one of the police officers who instigated the search. Additionally, the State argues that the petitioner’s consent can be inferred from the fact that he emptied his own pockets, and from his claim that he thought that carrying the knife in question was permitted, a claim which, according to the State, shows that the petitioner emptied his pockets because he felt safe in doing so, and not because he sensed that he was obligated to accede to the police request. As for the Jibli case, the State argues that the consent of the petitioner’s mother to the search can be inferred from the fact that she signed the search report and confirmed that she had no objection to the conducting of a search of her home and premises in her possession without a judicial warrant, and from the fact that she told one of the police officers “that she had no problem with a search for her son’s drugs”. As for the search conducted in the Ayash case, the State argues that the petitioner gave informed consent to the search, and that his wife also agreed to the search, as can be seen from the search report that she signed.
From the State’s arguments we can, at most, learn that consent was given for conducting the said searches, but nothing in those arguments shows that the consents given for the searches in the Ben Haim case and the Jibli case were informed consents, and only such consent can qualify the searches in the absence of any other source of authority for carrying them out. In other words, the State did not succeed in showing that the petitioner’s consent in the Ben Haim case, and the consent of the petitioner’s mother in the Jibli case for conducting the searches were given with awareness of the right to refuse the search, and that refusal would not be detrimental. Such awareness, as we explained above, must be ensured by a clear, understandable explanation of the rights of the subject of the subject of the search, given by the police officer who wishes to conduct the search. Such explanations were not provided in the three cases before us, and therefore, the consents cannot be deemed to have been informed. As noted, that was certainly the situation in the Ben Haim case and in the Jibli case. Under the circumstances, and bearing in mind that in the Ben Haim case and in the Jibli case, the said consents constituted the sole basis for authority to conduct the searches, the necessary conclusion is that there was a defect in the lawfulness of the two searches. We will address the subject of the lawfulness of the search in the Ayash case below.
Moreover, as we stated in para. 67, above, the authority to conduct a consensual search may serve as the source of authority for conducting a search at the discretion of a police officer when the evidentiary threshold established by law has not been attained. As far as the Jibli case is concerned, the authority to conduct a search of a person’s home is s. 25(1) of the Criminal Procedure Ordinance, which states that a police officer may search a house without a warrant if “he has reason to believe that a felony is being committed, or has recently been committed, therein”. However, in the Jibli case, there is some doubt as to whether even the informed consent of the petitioner’s mother could have qualified the search, because in that case, the defect in the police authority to conduct the search is not to be found in the absence of “reason to believe” that an offence had been committed, but in the fact that it was not an offence that had “recently” been committed, inasmuch as three weeks had elapsed between the time that the intelligence report had been received and the time of the search. As explained in paras, 38-40, above, this Court has ruled that the term “recently” should be measured in hours not days. Under these circumstances, the said s. 25(1), which allows the police to carry out a search of a specific place without a warrant, does not apply. In addition, this case also raises the question of whether informed consent to a search can also serve as a substitute for the “recently” requirement of s. 25 of the Ordinance, and not just for the requirement of a “reason to believe” that an offence had been committed at a particular place. Having already found that the consent to the search in the Jibli case was not informed consent, we see no need to decide that question, and it can be left for another time. Nevertheless, we will note parenthetically that, on its face, the conducting of a search without a warrant in the Jibli case raises no minor difficulties, and it is not clear what might justify failing to request a search warrant from the court under circumstances in which the relevant information was given to the police well before the search. As opposed to this, in the Ayash case, which we will address below, less than 24 hours had elapsed between the receipt of the intelligence report and the search. We will, therefore, consider the question of the lawfulness of that search separately.
Having found that there were defects in the lawfulness of the searches conducted in the Ben Haim case and the Jibli case, we are confronted with the question of the ramifications of those defects for the admissibility of the evidence obtained in those searches. In this regard, it should be made clear that, in view of the nature of the offences with which the petitioners were charged in the Ben Haim case and the Jibli case, excluding the evidence obtained in those searches (the knife in the Ben Haim case, and the drugs in the Jibli case) will lead to the acquittal of the two petitioners. In this regard, it should be noted that the State does not argue that it is possible to convict the petitioners for the said offences without the evidence found in the two searches.
In accordance with the case-law exclusionary doctrine, as enunciated in the Yissacharov case, the court has discretion as to the exclusion of unlawfully obtained evidence. The case-law exclusionary doctrine is a relative, flexible exclusionary doctrine, intended to prevent the substantive infringement of the constitutional right of a defendant to due process, in deviation from the boundaries of the limitation clause, if unlawfully obtained evidence were to be admitted at his trial (see: the Yissacharov case, at pp. 561-562). This doctrine expresses a balancing of the clash of competing values encountered in addressing the question of the exclusion of unlawfully obtained evidence. That balance must be struck by the trial court in accordance with the particular circumstances of each and every case (see: the Yissacharov case, at p. 562). On the balance are the need to protect the rights of the defendant and the fairness of the legal process, on the one side, while on the other side are various public values and interests, among them the search for truth, combating crime, and protecting public safety and the rights of crime victims. In balancing the competing values, the court must consider three groups of relevant considerations, as held in the Yissacharov case (see: the Yissacharov case, at pp. 562-566).
The first group of considerations concerns the nature and severity of the breach of law involved in obtaining the evidence. In this regard, the court weighs, inter alia, the nature of the breach and the extent of the infringement of the suspect’s rights, and also examines the question of whether the use of improper investigative methods was intentional and malicious or done in good faith. The second group of considerations concerns the extent of the influence of the unlawful investigative means upon the evidence obtained. In this context, the court must consider to what extent the unfair methods employed in obtaining the evidence may have influenced its reliability and probative value, and whether the unlawfully obtained evidence exists separately and independently of the unjustness involved in obtaining it. In the framework of this group of considerations, the nature of the evidence in question may be of great significance. Thus, for example, when we are concerned with real evidence that exists separately and independently of the unfair methods used to obtain it, that unfairness will not usually affect the reliability of the evidence. The third group of considerations that the court must address under the rule established in the Yissacharov case concerns the influence of excluding the evidence upon the justice system in its broad sense, which it accomplishes by comparing the social cost involved in excluding the evidence with the social advantage of its exclusion. The primary parameters by which this comparison is conducted are the importance of the evidence for proving the offence, the nature of the offence with which the defendant is charged, and its severity. It is, however, important to note that the question of how to take these parameters into account is not problem free, and it was not decided in the Yissacharov case.
As we see, according to the rule established in the Yissacharov case, the very fact that evidence was unlawfully obtained does not automatically result in its exclusion. The court faced with the question of the admissibility of unlawfully obtained evidence must exercise its discretion in view of the circumstances of the case, balance the competing interests accordingly, and consider the degree and nature of the expected infringement of the right to due process that will result from admitting the evidence.
Applying the guiding principles established in the Yissacharov case to the cases before us (the Ben Haim case and the Jibli case) is no simple matter. On the one hand, we are concerned with evidence obtained in two searches that were conducted without legal authority, and without the informed consent of the subjects of the searches. We are not speaking of a failure to act according to some police procedure or a technical breach of some rule, but rather with searches conducted in deviation from authority and in violation of the constitutional right to privacy. Moreover, the offences with which the petitioners were charged in the Ben Haim case and the Jibli case – unlawful possession of a knife, and possession of drugs for personal use – are not among the more serious offences in the law books, and in and of themselves, they are nonviolent and victimless. Therefore, the harm to the public interest as a consequence of excluding the evidence, and the related social cost would not be particularly high. The severity of the breach of law involved in obtaining the evidence, and the influence of exclusion on the cause of seeking justice thus tend to favour excluding the evidence obtained by the police in the two cases. On the other hand, the evidence we are concerned with is real evidence. Its reliability is not questioned, and it exists independently and separately from the unlawfulness in obtaining it. In such circumstances, the degree of influence of the unlawful investigatory methods upon the evidence tends to argue in favour of admitting the evidence despite the defects in obtaining it.
In balancing the competing values, we must bear in mind that the case-law exclusionary doctrine established by the Yissacharov case was intended, first and foremost, to protect the due-process rights of the defendant. Therefore, the basic test for the exclusion of evidence under the doctrine is whether the violation of the right to due process that will result from admitting the unlawfully obtained evidence meets the requirements of the limitation clause. In the cases before us, in view of the severity of the legal breach involved in obtaining the evidence, and the relatively mild harm that will incur to the public interest as a result of exclusion, it would appear that the necessary conclusion is that admitting the knife as evidence in the Ben Haim case, and admitting the drugs as evidence in the Jibli case would lead to a disproportionate violation of the due–process rights of the two petitioners. Moreover, although the evidence obtained in both searches was real evidence that exists independently and separately from the unlawful measures taken to obtain it, we are nevertheless concerned with evidence that would not have been found by the police were it not for the unlawful searches. In my view, some weight should be given to that fact in striking the overall balance when deciding upon the admissibility of evidence, and it can serve as support for exclusion (see: the Yissacharov case, at p. 564). Indeed, in view of the fact that, under the case-law exclusionary doctrine, the court is called upon to examine the admissibility of unlawfully obtained evidence from the perspective of the violation of the right to due process, there is merit in the distinction urged by the petitioners between real evidence that is inextricably tied to the unlawfulness in obtaining it, and real evidence that would have been discovered even without recourse to unlawful means by the police. In this regard, it should be noted that the Yissacharov case (at p. 565) held that:
the weight of the considerations that support the admissibility of tangible evidence is usually great .... Notwithstanding, it should be emphasized that even in this context we are not speaking of a strict rule, and the matter depends on the circumstances of each case on its merits.
From all the above it follows that, in accordance with the case-law exclusionary doctrine enunciated in the Yissacharov case, and in accordance with the tests established in the framework of that doctrine, the knife seized in the Ben Haim case, and the drugs seized in the Jibli case should be excluded as evidence. Therefore, the appeals of the two petitioners of the judgements of the District Courts should be granted, and the petitioners acquitted. It should further be noted that, in view of this result, we see no reason to address the other arguments raised by the petitioners in the Ben Haim case and the Jibli case, among them arguments relating to the question of who may grant consent to a search, and to the possibility of excluding the evidence on the basis of the provisions of the Protection of Privacy Law.
The Ayash case
As far as the Ayash case is concerned, we saw no reason to grant the appeal. Indeed, as we explained above, in this case, as well, there was a search conducted with the consent of the petitioner, but without him being informed of his right to refuse the search. However, the circumstances would appear to show that the petitioner knew and understood his rights, in view of the background leading to the search. This is a factual question that we need not decide, and in any case, it is highly doubtful that the petitioner’s consent could have served as grounds for the search in the absence of notice of his rights. It would seem, therefore, that the appropriate framework for examining the claim in regard to the actual knowledge of the subject of the search as to his right to refuse the search is as part of the overall evaluation of the circumstances of the case, which is carried out in order to decide upon the issue of admissibility of the evidence under the case-law exclusionary doctrine enunciated in the Yissacharov case. However, as opposed to the situations addressed in the Ben Haim case and the Jibli case, the petitioner’s consent in the Ayash case did not constitute the sole legal grounds for conducting the search. In light of the fact that the information that prompted the search was received by the police during the night preceding the search (which was carried out in the afternoon), the police had legal authority to conduct the search even without a search warrant. That is so in light of the provisions of s. 25 of the Criminal Procedure Ordinance, which establishes that a police officer may conduct a search of a house without a warrant if he has reason to believe “that a felony has recently been committed therein”. Under the circumstances, and in view of the proximity in time between the receipt of the information by the police and the time of the search, the question of the petitioner’s consent to the search was not relevant, and there was no defect in the lawfulness of the search (on the construction of the term “recently”, see paras. 38-40, above).
We would further add that the other arguments raised in the petition for leave to appeal in the Ayash case do not justify that it be granted. The test established by this Court as to the circumstances in which the Court will grant leave to appeal to a third legal instance is the existence of a question of public or legal consequence that goes beyond the private matter of the parties (see: LA 103/82 Henyon Haifa Ltd. v Matzat Or (Hadar Haifa) Ltd., IsrSC 36 (3) 123, 128 (1982)). Despite the fundamental character with which the defence has attempted to colour its arguments on the matters unrelated to the lawfulness of the search, such as the method for examining the pills found in the petitioner’s possession, or the admissibility of rebuttal evidence presented by the prosecution, all of these matters concern the petitioner’s case alone, and do not justify the granting of leave to appeal.
My conclusion is, therefore, that the searches carried out in the Ben Haim case and in the Jibli case were unlawfully conducted because the consent granted for performing them did not constitute informed consent. Under the circumstances, we found that admitting the evidence obtained by each of the said searches would result in an unconstitutional violation of the right to due process of the petitioners in the two cases. Therefore, in accordance with the case-law exclusionary doctrine enunciated in the Yissacharov case, that evidence should be excluded. In light of the exclusion of the evidence, the necessary conclusion is the granting of the appeals of the petitioners in the Ben Haim case and the Jibli case, and their acquittal of the charges against them. In the matter of the Ayash, the appeal of the lawfulness of the search is denied, and his conviction stands.
Justice Y. Danziger
The following question of principle was presented for this court’s resolution in the framework of three applications for leave for appeal, and was found to justify the granting of leave for appeal: In the absence of a statutory source for the conduct of a search, can a person’s consent to such a search constitute authority to conducting a search? In my view the question must be answered in the negative. This being so, I am unable to concur with the ruling of my colleague the President, that a person’s consent to a search may, in and of itself, constitute authority or the conduct of a search except apart from in the cases in which the legislator explicitly determined that the consent of the person who is the subject of the search would suffice for purposes of its conduct.
The Concrete Result
After examining the President's learned opinion I decided to concur with result she arrived at in the three applications before us, which we heard as appeals on their merits, but as stated I am unable to concur with her ruling in principle that a person’s consent may in and of itself constitute authority to conduct a search, apart from in the specific circumstances in which the legislature determined that consent of the person subject to the search would suffice for purposes of its conduct.
In my view, in both the cases of Jibli and Ben Haim, at all events there were grounds for ruling to disqualify the evidence because in both cases the search was illegal, having been conducted without legal authority.
An illegal search, in other words, a search conducted in the absence of statutory authority, constitutes a particularly grave violation of the right to due process, so much so that having weighed up the data relevant for purposes of the case-law exclusionary doctrine the scale weighs in favour of disqualifying the evidence obtained in its wake. This result is dictated by the principle of legality which prescribes that a sovereign act that violates a protected human right, and which was executed without statutory authorization, is void (see e.g. Daphna Barak-Erez, Administrative Law vol. 1 10 (2010) (hereinafter Barak-Erez), and the analysis of its implication in cases of acts investigation and arrest, see, ibid, at 103-104); See also: Dan Bein “The General Principles for Police Activities in Law Enforcement in Israel, Pelilim 2 (1991) 137-139; see also and compare in the context of the implementation of the principle of legality and its derivatives in criminal and constitutional law: Gabriel Hallevy, Theory of Criminal Law, vol. I 209-221 (2009). Yoram Rabin and Yaniv Vaki, Criminal Law vol. 1 73-120 (2nd ed. 2010); Barak-Erez, ibid, 97 n. 1 and references cited there; concerning the case-law dispute over the implementation of the principle of legality in criminal law, see e.g. Gil Eshet, The Assimilation of Amendment 39 of the Criminal Law in Israeli Case-Law – 1995- 2005 139, 249-256 (2011) concerning the dispute between Justice (former title) D. Beinisch and Justice Y. Englard on the implementation of the principle of legality in CrApp 4596/98 Anon v State of Israel  IsrSC 54 (1) 145, 191 (2000)].
Concerning the Ayash case, I concur with the ruling of the President, that s. 25 of the Criminal Procedure (Search and Seizure) [New Version], 5720-1969, constitutes a source of authority for conducting a search and as such there is no cause for ruling on evidential disqualification,
Regarding the concrete conclusion arrived at by the President, I would like to make the following comments
(a) Relevancy of the Severity of the Offence
In Jibly and in Ben Haim the President ruled that the evidence obtained in the course of the search should be disqualified by force of the case law exclusionary doctrine, inter alia because the offences “are not among the more serious offences in the law books, and in and of themselves, they are non-violent and victimless” (paras. 75-76 of the President’s opinion). As I recently stressed in CrimFH 5852/10 State of Israel v Shemesh (not reported) (hereinafter: Shemesh) a dispute that emerged between myself and the members of the bench, the severity of the offence ascribed to the accused does not, as such, justify the admission of evidence illegally obtained, given that the case law doctrine of disqualification applies, perhaps even with greater force, to grave criminal offences such as sexual offences and the causing of death offence (ibid, paras. 8 and 29). The severity of the offences as such and the urgency of the evidence for proving guilt do not justify the admission of evidence the obtaining of which is tainted by illegality.
My position on this matter is anchored in the recent case-law of this Court. In this context the comments of Justice E. Levy in CrimA 4988 Parhi v State of Israel are particularly apposite, notwithstanding that they were not made in the context of an illegal search but rather with respect to the conduct of a police interrogation in a manner that was not consistent with the right to due process, ibid., para. 19:
It emerges that this set of considerations is actually a double edged sword – whereas the acquittal of a person who committed such heinous offences is unacceptable, it is precisely cases of this nature that amplify the importance of ensuring due process and protecting the defendant’s rights. Doing justice in its broad sense also includes the interest of upholding the rights of the accused. Admitting evidence because of its importance to the prosecution may damage public trust in the sovereign authorities, and create the feeling that a person is a pawn in hands of the sovereign who changes the rule in accordance with its needs. In view of this I feel that when the damage to due process as reflected in the full range of considerations and circumstances is grave, this particular set of considerations cannot qualify evidence, even if the offences attributed to him are among the most severe ones of the legislature, and significant importance attaches to his conviction.
See also CrimA 5956 Al – Auka v State of Israel, para. 12 of the opinion of Justice N. Hendel, and para. 5 of my comments ibid.
Already in Yissacharov, Justice Beinisch (former title) articulated the difficulty involved in having consideration for the importance of the evidence and the gravity of the offence, stressing that (ibid, s. 73):
I am not unaware that giving weight to the importance of the evidence and the seriousness of the offence attributed to the accused when deciding the question of the admissibility of illegally obtained evidence involves certain difficulties. Taking into account the aforesaid considerations may lead to a situation in which precisely in investigations of serious felonies in which the constitutional right of the accused to dignity and liberty deserves substantial protection, the compliance with the rules of conducting a fair and proper investigation will decrease.
In this context Boaz Sangero noted in his article “The Rule of Disqualification of Unlawfully Obtained Evidence that was laid down in the Yissacharov ruling – Good Tidings or Disappointment, Law and Army" 19 (2007) 67 (hereinafter: Sangero) that (ibid, p 109):
In other words, and from a slightly different perspective, to the extent that the offence ascribed by the prosecution to the defendant is graver, the court will be more inclined to overlook more blatant violations of the suspect’s rights. This being the case, it is doubtful whether there is any reason for a disqualification rule. Presumably, the bulk of serious infractions of the law on the part of the police investigators are perpetrated where there are suspicions of serious offences. As such, who will the disqualification rule protect – those suspect of parking offences?
We are thus confronted by a paradox: Until now it was accepted that to the extent that the offence attributed to the defendant was graver, meaning an anticipation of a more extensive negation of freedom, so too greater strictness is required in the upholding of the procedural guarantees granted to him.
As I noted in this context in Shemesh, “The public interest in combating crime cannot negate the remedy to which a victim is entitled as a result of the violation of his right to due process”, not even in the gravest of offences (ibid, para 9).
(b) The Mere Fact of the Evidence being Real does not Prevent its Disqualification
The President addressed the fact that under the circumstances, the evidence that was seized in the course of the searches was real evidence. Notwithstanding that the President ultimately ruled that the evidence should be disqualified because the Police would not have been able to locate it had it not been for its illegal searches – a ruling that I concur with – in her view weight must be ascribed to the fact that real evidence is evidence the veracity of which is undisputed and which exists independently of the illegality involved in obtaining it. I am unable to agree with this approach, which is based on a tendency not to disqualify real evidence by reason of these features. I dwelt on this point in the Parhi case, stressing inter alia that (ibid, para 11 of my comments):
Justice Levi’s approach regarding cellular pinpointing rests on a deeper conception regarding the disqualification of real evidence, which views such evidence as being reliable, and this being so, prima facie, its submission as evidence does not impair due process. In my view there is no necessary connection between the “reality” of the evidence and the infringement of fairness of the legal proceeding.
See also, Yuval Marin Rinat Kitai – Sangero “Collins Miranda and Yissacharov – On the Gap between the Ideal and Reality in the Yissacharov Ruling” Mishpatim 36 (2) 429, 484 (2007); see also paras 5- 7 in my comments in Parhi.
This approach is also supported by the judgment of the Canadian Supreme Court – R v Grant which the President relied on in her judgment in Shemesh. In a joint opinion penned by President Mclachlin and Justice Charraon, it was held that (p. 111):
While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability ....
In this context see the article of Don Stuart which I referred to in Shemesh, in para. 31 ["Welcome Flexibility And Better Criteria From The Supreme Court Of Canada For Exclusion Of Evidence Obtained In Violation Of The Canadian Charter Of Rights And Freedom", 16 Sw. J. Int'l L. 313, 314, 317-318 (2010)].
Furthermore, the disqualification of evidence, even when it is real evidence, is intended, in my view, to serve a deterrent role in respect of the investigating bodies (see my opinion in Shemesh para. 15; see also Sangero, at pp. 100-101, 103.
My position on this matter has not changed, and I still adhere to it.
As mentioned, the President ruled in her opinion that even absent statutory authorization, a person’s consent may be a source of authority for conducting a search. I disagree with this for two principal reasons: The first is based on the principle of the legality of the administration; and the second is based on the inbuilt imbalance of power in circumstances in which a person with authority makes a “request” of a regular citizen to search him or his effects.
(a) Principle of Legality of Administration
It is not disputed that there is no statutory authority that allows a policemen to receive a person’s consent for as long as the statutory grounds for a search do not exist, as noted by the President in her opinion (ibid, para. 23; compare: Yaakov Kedmi Criminal Proceeding and Pre-Trial Proceedings vol. 2 591 (2008)). Even so, the President opines that a person’s consent to the conduct of a search could be a source of authority, insofar as every person is permitted to waive his privacy. My opinion is that an analysis of the question in terms of the right to privacy and a person’s right to waive his privacy is not relevant, having consideration for the requirements deriving from the principal of legality of administration, under these particular circumstances, according to which the administration has no authority to do any act that it was not explicitly authorized to do (even if consent was given). Even if a person waives his privacy, that waiver does not establish a source of statutory authority as dictated by the principal of the legality of the administration. The situation would differ were the legislature to statutorily anchor a policeman’s authority to request a person’s consent to agree to a search under circumstances in which legally prescribed grounds enabling such a search do not exist. It seems that it was not by chance that until this very day this kind of authority has not been statutorily anchored, given the fundamental principles of our constitutional law.
The principle of the legality of administration is a fundamental principle of our legal system, and is actually a central foundation of any democratic regime. Barak-Erez dwelt on this point, clarifying that (ibid, at p. 97):
Authority is a foundational principle of administrative law. Any administrative authority is obligated to operate within the limits of the authority conferred to it by law. The principle that gives expression to this duty is known as the principle of the legality of the administration. It establishes the administrative authority’s subordination to the law. According to the principle of legality of the administration, the administrative authority is only permitted and authorized to do the acts that the law authorized it to do. In contrast to a natural person, who is permitted to anything which is not forbidden to him (a principle that is also reflected in the criminal law), an administrative authority is prevented from performing any act which it was not authorized to do, by law or by force of law. In fact, the two aspects of the principle of legality are directed at the same purpose – restricting the power of the administration and securing the freedom of the individual – in accordance with the liberal tradition, and they may be viewed as complementing one another. The principle of the legality of the administration strengthens the democracy because it demands that all acts pertaining to the power of the sovereign be based on a law that was enacted based in the elected, legislative authority.
See also Yitzhack Zamir, Administrative Authority vol. 1 pp. 74-76 (2nd ed., 2010) (hereinafter – Zamir).
Furthermore, with the enactment of the Basic Laws concerning human rights, the principle of legality merited constitutional grounding. Regarding this Barak-Erez stressed that (ibid, pp. 98-99):
|The obligation to anchor any act of an administrative authority in law derives, as stated, first and foremost from the basic principle of the rule of law, an unwritten principle, which has operated since the dawn of Israeli law .... All the same, since the enactment of the Basic law concerning human rights, this principle also has a constitutional expression. Under the limitations clauses of both of the laws, a violation of a fundamental right protected by thereby may only be “by law” or “by force of explicit authorization therein ....|
Evidently, it is undisputed that the search of
a person or his personal effects violates his freedom, his right to personal
intimacy, his dignity, and his autonomy. Not by chance, s. 7 (c ) of Basic Law:
Human Dignity and Liberty prescribes that “No search shall be conducted on the
private premises of a person, nor in the body or personal effects.”, unless, as
stated in s. 8 of the Basic Law: “by a law befitting the values of the State of
Israel, enacted for a proper purpose, and to an extent no greater than is
required.”.[See also: Mordechai Kremnitzer “The Police and Human Rights”
Law and Government 2, 159 (1993)]. In other
words, by its very nature a search violates human rights that are protected by
Basic Law: Human Dignity and
In a country adhering to the rule of law, therefore, interrogations are not permitted in absence of clear statutory authorization, whether such authorization is through primary or secondary legislation. This essential principle is expressed in the Criminal Procedure Statute (Powers of Enforcement, Detention), 1996 (s. 1(a)):
Hence, the statute and regulations must adhere to the
requirements of the Basic Law: Human Dignity and
These comments made by President Barak in the context of detention, arrest and interrogation are also applicable, in my view, to the subject of searches, mutatis mutandis.
Without making light of the public interest in the conduct of a search even in the absence of a statutory authorization, (paras 44-48 of the President’s opinion), it is incumbent upon us to reiterate the basic foundations of our legal system, as it was so articulately expressed by Justice Zamir, who wrote that (ibid, p. 79-80):
|Indeed, it is still conceivable that in a particular case a public need will arise for an administrative act for which there is no authority. Even so, and even in particularly grave cases, this cannot justify a bad rule. In such a case the possibility of amending the law should be considered in a manner that addresses the public need without jeopardizing the basic principle of the legality of the administration. Administrative authority must be anchored in the law.|
Furthermore, it cannot be argued that the legislature did not consider the possibility of authorizing a policeman to conduct a search of a person who is not suspected of having committed an offence, with his consent. Hence, in the 2005 Amendment of the Criminal Procedure (Enforcement Powers – Bodily Search and Confiscation of Means of Identification) Law, 5756-1996, s. 14 was added, and it restricted the possibility of conducting a consensual search of a person not suspected of having committed an offence to two specific situations:
It would not be unreasonable to assume that once the subject of regulating the authority or the consensual search of a person who is not a suspect, became part of the legislative agenda, and the legislature chose to permit that kind of search in restricted and defined circumstances, that the legislature did not intend to allow a broadening of the authority to conduct a search based on consent alone, to other circumstances that are not anchored in the law [see Explanatory Note to Draft Bill of Criminal Procedure (Enforcement Powers – Bodily Search and Confiscation of Means of Identification) (Amendment) 5764-2004, Hatz’ot Hok115 (hereinafter: the Draft Bill). Under the circumstances the principle of the legality of administration should receive extra force when deciding the case before us.
In view of the above, in the absence of statutory authority to conduct a search by force of the consent of the subject of the search, and given the fact that the search infringes a person’s fundamental rights, my view is that the granting of consent to the search does not, as such constitute a legal source for its conduct.
(b) The plight of the average citizen
Whereas the first reason for my position rests on a fundamental principle of our legal system, the second reason supporting my position is rooted in the quandary of the average citizen who finds himself confronting the “request” of a person of authority to conduct a search on him or his personal effects. The President in her opinion related to weakness of the average citizen finding himself in that situation, writing that “that individual’s main desire is to bring the encounter to an end as quickly as possible” (paras. 53-55).
In view of the power imbalance mentioned by the President, I do not think that one can expect that the person’s consent to the search is an authentic consent, expressing his free and voluntary choice. In the President’s view this concern may be allayed by the explanation given by the policemen to the citizen, to the effect that he is permitted to refuse the search and that his refusal will not be held against him. However, I do not think that we are permitted to take it for granted that the provision of an explanation by the policeman will enable the citizen to exercise his own free discretion, unfettered by pressure, to refuse the policeman’s request. Given the imbalance of powers inbuilt into the situation, as discussed (compare Public Committee v Israeli Government [ ] at pp. 834-835 and references cited), there is more than a reasonable chance that in many cases the citizen will consent to the policeman’s request to conduct a search, being seized of fear regarding the consequences of his refusal to the request. In my view, consent under those circumstances cannot be considered consent [see Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211 (2002); Brian A. Sutherland, Whether Consent To Search Was Given Voluntarily: A Statistical Analysis Of Factors That Predict The Suppression Rulings Of The Federal District Courts, 81 N.Y.U. L. Rev. 2192 (2006); and compare: Christo Lassiter, Consent To Search By Ignorant People, 39 Tex. Tech L. Rev. 1171 (2007); Also compare Daniel R. Eilliams, Misplaced Angst – Another Look At Consent-Search Jurisprudence, Northeastern University School of Law, working paper no. 968 (2006). Even more force attaches to the aforementioned with respect to the weaker sections of he population, such as minors, foreign workers, migrant workers and those who are intellectually and mentally challenged (see and compare: Deliberation of the Constitution, Law and Justice Committee of the Knesset of 13 April 2005 regarding the preparation of the draft bill in anticipation of the second and third readings in the Knesset. Also see and compare: Steven F. Shatz, Molly Donovan and Jeanne Hong, The Strip Search of Children and the Fourth Amendment, 26 U.S.F. L. Rev. 1 (1992)
I concur with the result arrived at by the President in three proceedings mentioned in the heading. I do not concur with the President regarding the reason she gave in her answer to the legal question discussed before us. In my view are no grounds for the conclusion that the search subject’s consent to the conduct of a search establishes the authority to conduct a search in cases which fail to satisfy the legal requirements for conducting a search. The authority to ground a search solely on the consent of the subject of the search must be explicitly anchored in primary legislation as is customary in the legal field under discussion.
Justice E. Arbel
I concur with the opinion of my colleague the President, its reasoning and its result. One of the basic objectives underlying the rules of searches is to enable the police forces to fulfil their law enforcement duty in the in the best manner possible, and to promote public order in the state. The President dwelt upon these duties of the police, having reference to s.3 of the Police Ordinance [New Version], 5731-1971, which determines that the Israel Police shall be employed inter alia in the prevention of offences and in maintenance of public order.
Regrettably, the reality of our daily life has of late become inundated with knife drawing, drug trading, and resort to violence as a solution for disputes. The scourge of violence, including the phenomenon of carrying arms, is spreading throughout Israeli society. In its response, the respondent noted that every year thousands of indictments for violence and possession of weapon are filed, at an ever increasing rate. Being equipped with knives and knuckle busters is particularly widespread among the youth going to places of entertainment. On more than one occasion the Court has noted the importance attaching to the battle against this “culture” (CrimA 9184/06 State of Israel v Cohen, para. 17 (not reported):
Unfortunately we are witness to increasing numbers of cases of youth who come to places of entertainment equipped with a knife, which is drawn and pierced into the body of other young men or women by reason of a trivial dispute. This deviant phenomenon which has become overly common in our society, and the unbearable ease with which injurious and occasionally lethal use is mode of the knife compels an appropriate penal response, based primarily on considerations of deterrence and retribution. The lower court guided itself in accordance with this penal policy which has been reiterated in the rulings of this Court.
See also CrA 2251/11 Naapa v State of Israel (not reported, 4.12.11); CrA Azaam v State of Israel, para. 19 (not reported, 13.10.08); CrA Choeskin v State of Israel para. 6 (not reported, 28.9.08).
I believe that the necessity of combating and preventing these phenomena tilt the scale in favour of enabling the police to conduct a consensual body search of a person, his effects or his house, even in cases in which the suspicious signs which came to the police do not reach the level of “reasonable suspicion” as per s. 3 (b) of Powers for Maintenance of Public Security Law, 5765-2005, “reasonable grounds to suspect” as per s. 29 of the Criminal Procedure (Arrest and Search) [New Version] Ordinance 5729-1969 (hereinafter: the Ordinance), or “reason to believe” as per s. 25 (1). For purposes of combating the surge of gave crimes in our society the Police require leeway and accessible tools that can create deterrence which can prevent criminal incidents and ensure efficient enforcement, while ensuring the maintenance of public order and guaranteeing individual rights. As the respondent argued, the search is central and critical tool of enforcement, the absence of which exacts a significant societal price. I do not ignore the difficulty of granting the possibility of conducting a search with requisite statutory authority. Nor am I flippant regarding the violation of the right to privacy which is occasioned by the search. However, since the search is conducted in the framework of “informed consent” as defined by the President, which is restricted to being upon a person’s body (as opposed to inside a person’s body – whether interior or exterior – as defined by the Criminal Procedure (Powers of Enforcement – Body Search of a Suspect and Obtaining Means of Identification) Law, 5756-1996, the intensity of the violation of the right to privacy is low. The reason is that the search is conducted by a policeman who acts in order to protect the public, and maintain public order, and hence I too have concluded that the power of the consent given in the circumstances of the case before is such that it serves as a substitute for the evidential legislative threshold of “reasonable suspicion” or “reason to believe”.
I also concur with the President’s call to establish a official procedure that would include clear guidelines concerning the scope of search powers given to the policemen. Even though the presumption is that the policemen will exercise their powers in good faith, the establishment of such a procedure would contribute to ensuring strict adherence to the requirement of consent.
The President ruled that if the person in respect of whom the search is requested, chooses to refuse the request to search, his refusal will not be held against him (see paras. 52-56). I am a partner to this ruling. Moreover, I tend to the view that the meaning of this ruling is that the refusal cannot give rise to a “reasonable suspicion” that constitutes statutory grounds for conducting a search. Assume a situation in which there are signs triggering a policeman’s suspicions regarding a particular person, which do not reach the level of “reasonable suspicion” as required by law. Under those circumstances, the most that the policeman can do is to request that person’s consent to conduct a search. To the extent that the person refuses to consent to the search, I tend to the view that his refusal as such cannot be regarded as an additional suspicious circumstance which can join the other existing suspicious circumstances, and the combination of which will establish a “reasonable suspicion” that allows a search by force of the existing statutory authority. It would seem that the refusal under those circumstances cannot “buttress” that which already exists. That kind of ruling would empty the requirement for consent of all content. It would be liable to lead to the circumvention of the requirement of consent in circumstances in which there is no suspicion of the level of a “reasonable suspicion”. In my view this position is the derivate of the ruling that the refusal will not have any negative repercussions for the refusor, as determined by President Beinisch.
Finally, I would add that the case law exclusionary doctrine was adopted by an extended panel in the wake of an in-depth examination of the relevant issues. Due to the complexity of the subject and the multiplicity of pertinent considerations the case law ruling in CrA 5121/98 Yissacharov v Chief Military CrimA 5121/98 Yissacharov v Chief Military Prosecutor, IsrSC 61(1) 461 (2206) (hereinafter: Yissacharov) left the court with broad discretion concerning the admissibility of illegally obtained evidence, having consideration for the special circumstances of each case (ibid, para. 62 of the President’s opinion). This being so, I see no reason for addressing the doctrine, its broad scope and the other considerations which are part of it, as formulated in the Yissacharov ruling.
Summing up, I concur with the President’s opinion.
Authority for Maintaining Public Safety Law, 5765-2005
Criminal Procedure (Powers of Enforcement – Body Search of a Suspect and Obtaining Means of Identification) Law, 5756-1996 (hereinafter: the Powers of Enforcement Law). In the Powers of Enforcement Law, the legislature regulated the manner for conducting an “external search” and an “internal search” of a person’s body. Both of these types of searches relate to collecting physical evidence from a person’s body, and therefore, as a rule, involve a greater infringement of the right to privacy than searches conducted upon a person’s body.
Yoav Sapir, Elkana Laist for the petitioner in LCrimApp 10141/09.
Moti Levy, Yossi Torres for the petitioner in LCrimApp 617/10.
Alon Nesher for the petitioner in LCrimApp 5758/10.
Ohad Gordon for the respondent.
Avner Pinchuk, Lila
Margalit for the Associationf
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