MIAMI (CBSMiami) – In a rare move, prosecutors say they could charge billionaire New England Patriots owner Robert Kraft with felonies, instead of the two misdemeanor counts of soliciting prostitution.

But first, the state must win an appeal of a judge’s order that tossed out all evidence, including video of the alleged incidents against Kraft.

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The judge ruled the police didn’t have a lawful so-called “sneak and peek” warrant when they placed hidden cameras in the Jupiter day spa.

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Legal experts say Kraft’s case is a constitutional test that pits the rights of police to investigate crimes using secret cameras against the privacy rights of individuals.

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If Kraft is convicted of a felony, he would face up to five years in prison.