Although local authorities are authorized to install cameras for the purpose of enforcing specific traffic offenses, subject to conditions that minimize the violation of privacy (such as restrictions on the identification of passengers and pedestrians), it does not detract from the need for a judicial order when the police request access to this documentation for the purpose of investigating a crime.  The authority of the local authority is for specific enforcement purposes defined in the law (see, for example, Sections 27A1(a)(1) and Section 27A1(e) to the Traffic Ordinance [New Version]), while the police's access to computer material for the purpose of a criminal investigation is subject to the search and privacy laws.  Therefore, as part of a police investigation on suspicion of committing an offense, the police must obtain a court order in order to penetrate cameras installed by a local authority, since access to computer material is considered a search that violates privacy.  However, in urgent cases of suspicion of a crime and an immediate need to prevent the concealment of evidence, the police officer has the authority to conduct a search without a warrant To capture the cameras, subject to the conditions, as aforesaid In section 25 To the PDP.

Therefore, I am unable to determine that any agreement, which, as aforesaid, was not presented before the court, prevails over the explicit provisions of the law.  As a result, the penetration of the cameras of the Tel Aviv-Jaffa Municipality was also carried out illegally.

73. It was therefore found that all the relevant videos were captured from cameras, some private and some of which were of a local authority or non-profit organization, without the Israel Police obtaining a court order in advance. Moreover, even if it were possible to penetrate those cameras and copy the videos from them by virtue of the Ben-Haim rule, it was found that even the police did not meet this standard, because the consents obtained from the camera owners were not informed consents.  Therefore, there is no alternative to the determination that the search operations - penetration and copying of the videos from the aforementioned security cameras - were carried out illegally.

Admissibility of Videos Seized by Virtue of the Doctrine of Judicial Disqualification

74. After I have reached the conclusion that obtaining the footage from the various security cameras was done illegally, the implication of the lack of legality in relation to the question of admissibility or invalidation of evidence - those videos that were copied from the security cameras - must be examined.
75. As is well known, the poisoned tree fruit doctrine, which is native to the United States, has not been adopted in our legal system. According to this doctrine, a court should have invalidated not only the evidence obtained as a direct result of a violation of constitutional rights, but also any other evidence that was directly or indirectly identified by the information disclosed in that first evidence.  The reason for rejecting this doctrine lies in the preference for the purpose of the fairness and purity of the legal process, over the deterrent-educational purpose that underlies it.  This starting point was and still is with us.

However, the beginning of a shift in the balance between the competing interests and values on the issue of the admissibility of evidence in criminal law came from the Supreme Court in its ruling on a criminal appeal 5121/98 Raphael Issacharov v.  Chief Military Prosecutor, IsrSC 66(1) 461 (hereinafter: "Issacharov").  For the first time, this rule created a general doctrine of disqualification, relating to evidence obtained in violation of the law, and whose acceptance as evidence would lead to a violation of the fairness of the proceeding.  This means giving considerable weight to the rights of the defendant and third parties, alongside the values that have been with us since ancient times - discovering the truth and fighting criminality.  Hence, the judgment of evidence, admissibility or inadmissibility, will also be determined subject to judicial review of the manner in which it was obtained.

76. In accordance with the doctrine of judicial invalidation, as formulated in the Issacharov, the court has discretion to disqualify evidence obtained illegally. The doctrine of judicial disqualification is relative and flexible, and is intended to prevent a material violation of a defendant's constitutional right to a fair trial, in the event that unlawfully obtained evidence is accepted at his trial.  On the one hand, the need to protect the rights of the accused and the fairness of the criminal law is at stake; On the other hand, there are various public values and interests, including: the public interest in prosecution, exhaustion of proceedings and the publication of the truth, the fight against criminality, the protection of public peace, and the protection of the rights of the victims of the offense by force and practice.
77. This doctrine is also anchored today In section 56A of the Evidence Ordinance [New Version], 5731-1971, and it applies to all types of evidence, including object evidence, and its main purpose is to protect the fairness and purity of the criminal proceeding.
78. In order to strike a balance between these conflicting values, it was determined that the court must take into account, inter alia, three sets of relevant considerations, to the question of when, in a trial, evidence obtained illegally, unfairly, or unlawfully violating a protected person's right would significantly infringe on the right of a defendant to a fair trial that is not within the scope of the limitation clause in the Basic Law: Human Dignity and Liberty. In other words, in order to disqualify evidence that was obtained illegally, it is required that its admission at trial will harm the fairness of the proceedings against the defendant - an injury that is significant, for an improper purpose, and to a degree that exceeds what is required.  Therefore, taking into account the relevant considerations enumerated in the case law, I will now examine the question of the admissibility or invalidity of the findings of the intrusions into the security cameras in the circumstances at hand.
79. The first group of considerations deals with the nature and severity of the illegality or unfairness involved in obtaining the evidence. Given that the application of the doctrine of judicial inadmissibility is contingent upon the unlawful obtainment of evidence, i.e., in an illegal, unfair manner, or while unlawfully violating a protected right, this set of considerations focuses on the improper conduct of the investigating authorities.

In this context, consideration should be given, inter alia, of the following facts: the nature and severity of the illegality or unfairness involved in obtaining the evidence; whether improper means of interrogation were used deliberately and maliciously or in good faith; whether there are "extenuating circumstances" that have the power to reduce the severity of the illegality involved in obtaining the evidence; How easily could the evidence have been legally obtained and whether the evidence would have been discovered or obtained by law enforcement, even if the improper interrogation methods had not been used?

80. In the case at hand, the police penetration and the copying of videos from security cameras, both private and of a local authority, without a judicial order and even without the informed consent of the camera owners, when it is doubtful whether this would have legitimized the intrusion, constitutes an unlawful objection. However, I was under the impression from the testimonies of the police officers and all the evidence that was placed before us that the police officers who carried out the seizure of the cameras and the penetration for the purpose of copying the videos did not act maliciously, in bad faith, or out of a motive to derive investigative profit as a result of a failure to carry out the penetration of the cameras.  I was impressed by the testimonies of the policemen Daniel and Giuri that they genuinely believed that the consent they received from the owners of the cameras, in the manner described, including agreements with the Tel Aviv Municipality, was sufficient to allow the security cameras to penetrate the premises.  I found support for this in the testimony of Officer Daniel with regard to his concerns that the defendant's mother did not understand him properly due to language difficulties and his recommendation to issue an order in order to be on the safe side, as well as the issuance of the order regarding the cameras at 15 Sumkan Street, a civil file in the circumstances detailed above.

Thus, I am satisfied that the police acted in good faith, without malicious intent, and it is clear that there was no attempt to incriminate the defendant, since at the time of the penetration of the cameras and the copying of the videos, his identity was not known at all.