FORT LAUDERDALE, Fla. (AP) — Florida appellate judges on Tuesday questioned the legality of search warrants that let police secretly video record New England Patriots owner Robert Kraft and others paying for massage parlor sex, pressing a prosecutor on his contention that the warrants were legally valid.
Deputy Solicitor General Jeffrey DeSousa found himself repeatedly queried by the three-judge panel as he tried to persuade them that the warrants and searches met all constitutional protections and that they should overturn lower court rulings that barred the recordings' use at trial.
Misdemeanor charges against Kraft, 79, and other customers would have to be dropped if those rulings stand, although felony charges against the spa owners might proceed as there is other evidence against them.
Kraft and others were charged in February 2019 in a multi-county investigation of massage parlors that included the secret installation of video cameras in the spas' lobbies and rooms. Police say the recordings show Kraft and other men engaging in sex acts with women and paying them.
Police say they twice recorded Kraft, a widower, paying for sex at the Orchids of Asia massage parlor. Kraft has pleaded not guilty but issued a public apology.
Judge Robert Gross, who presided at the Florida Fourth District Court of Appeal hearing, seemed taken aback by DeSousa's contention that he and his colleagues should primarily consider the plain language of the Fourth Amendment. It says judges can issue warrants if police demonstrate probable cause of a crime, that warrants must specify the place to be searched and what can be seized.
Gross told DeSousa he seemed to be ignoring numerous rulings by the U.S. Supreme Court expanding Fourth Amendment protections since the 1960s, including some that restrict electronic surveillance by police.
"You are getting us off on the wrong foot by focusing on the language of the Fourth Amendment when we should be focusing on the Supreme Court jurisprudence....that is heavily weighted against you," Gross told DeSousa.
The 90-minute hearing included arguments on whether cameras were necessary; on whether the police violated the privacy of customers who simply received massages; and on the proper sanction if the defendants' rights were violated.
The attorneys for Kraft and the other defendants argued that police failed to minimize the privacy violations they committed by recording innocent customers, including women, who received legal massages.
"These cameras, that were put into private massage rooms where patrons would be undressing as a matter of course, they recorded everything," Kraft attorney Derek Shaffer said. He said Kraft "had the same reasonable expectation of privacy that any massage patron going to a licensed facility would be entitled."
Attorneys also argued the cameras weren't necessary as police already had enough evidence to charge the spa owners, including bank records, website advertising, outside video surveillance and napkins containing bodily fluids retrieved from garbage bins.
The only proper punishment for prosecutors and police, they argued, is to throw out all recordings.
DeSousa argued that police and prosecutors need the recording to convict the owners of felonies. The owners must be shown receiving payments from the prostitutes and the only way to get that is to install cameras, he said.
He said detectives had to fully record all massages, because the sex acts happened at their conclusion and 95% of male customers received one. While no female customers paid for sex, they were few in number and to not record them could be seen as discriminating against men, he said.
DeSousa said even if the court finds police violated innocent customers' privacy rights, the Supreme Court has ruled that in most circumstances, only improperly seized evidence should be thrown out. Since Kraft, the other men and the masseuses were engaged in crimes, their recordings should be permitted, he said.
"Given the unique and difficult circumstances confronting these officers, the conspiracy, the logistics of the operation, what they reasonably anticipated they would see and the difficulty of knowing at the start of any given massage will this end with a happy ending or will it not, we think what law enforcement did here was entirely reasonable," DeSousa said.
The court usually takes weeks to issue rulings. The losing side will likely appeal to the state Supreme Court, which could accept the case or let the decision stand.
If convicted, Kraft would likely receive a fine, community service and other sanctions, but he could also be suspended or otherwise punished by the National Football League.