TALLAHASSEE (CBSMiami/NSF) – A state appeals court Wednesday said hidden-camera videos of New England Patriots owner Robert Kraft and other men were improperly obtained and should be suppressed in prostitution cases involving Southeast Florida massage establishments.

The ruling by a three-judge panel of the 4th District Court of Appeal was a victory for Kraft, whose arrest in 2019 on misdemeanor prostitution charges drew national headlines. The panel upheld lower-court decisions to suppress the videos based, at least in part, on arguments that police violated 4th Amendment protections against unreasonable searches.

“The type of law enforcement surveillance utilized in these cases is extreme,” said the 23-page ruling, written by Judge Cory Ciklin and joined by Judges Robert Gross and Melanie May. “While there will be situations which may warrant the use of the techniques at issue, the strict Fourth Amendment safeguards developed over the past few decades must be observed. If they are not, any evidence obtained could very well be declared inadmissible as a matter of constitutional law. To permit otherwise would yield unbridled discretion to agents of law enforcement and the government, the antithesis of the constitutional liberty of people to be secure against unreasonable searches and seizures.”

The ruling dealt with cases in which police obtained warrants for video surveillance of massage establishments in Palm Beach and Indian River counties as part of prostitution investigations. In the Kraft case, Jupiter police used a fake bomb threat to clear the Orchids of Asia Day Spa and install hidden cameras in four massage rooms and the lobby, according to Wednesday’s ruling.

Detectives monitored the video for five days, with cameras recording continuously. The ruling said police recorded at least 25 customers paying for sexual services. Kraft visited the establishment twice and was arrested as he drove away after the second visit. He was later charged with two misdemeanor counts of soliciting prostitution, according to the ruling.

A county judge granted Kraft’s motion to suppress the video, finding that police “did not sufficiently minimize the recording of conduct outside the scope of the warrant,” the appeals court said. In the Kraft case and the Indian River County cases, the appeals court agreed with lower-court judges that police did not comply with minimization requirements.

“The warrants at issue did not set forth any specific written parameters to minimize the recording of innocent massage seekers, and law enforcement did not actually employ sufficient minimization techniques when monitoring the video or deciding what to record,” Ciklin wrote. “In all the investigations, some innocent spa goers were video recorded and monitored undressed. There was no suggestion or probable cause to believe that female spa clients were receiving sexual services, yet law enforcement largely failed to take the most reasonable, basic, and obvious minimization technique, which was simply to not monitor or record female spa clients.”

In one of the Indian River County cases, the appeals court said Vero Beach police had cameras recording continuously for 60 days.

“Thirty days’ worth of unmonitored recordings remain in the police department’s possession in that case,” the appeals court said. “Other innocent spa clients may have been recorded nude — or partially undressed — on those days. Those innocent clients potentially live with the knowledge that nude videos of themselves are preserved on a server somewhere with unknown accessibility. In our ever increasingly digital world filled with hackers and the like, such awareness renders the surveillance a particularly severe infringement on privacy.”

The appeals court also said it was proper to exclude the evidence from the cases.

“(We) must hold — as every federal circuit court and state court to consider the question has — that this type of intrusive, covert video surveillance is subject to heightened standards and procedures designed to implement Fourth Amendment protections, particularly in the face of the constantly expanding use of electronic surveillance techniques by law enforcement,” the ruling said. “And where the government fails to faithfully follow these standards and procedures, it will be held to account by the exclusion of the evidence obtained. The Fourth Amendment demands no less under these circumstances.”

(©2020 CBS Local Media. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. The News Service of Florida’s Jim Saunders
contributed to this report.)

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