New England Patriots owner Robert Kraft still faces charges of prostitution almost a year after he was arrested in a vast district of three sex payment probe which involved the police video recording hundreds of alleged sexual acts by licensed massage therapists.
Initially announced as potential research on human trafficking – claims the authorities later turned away from – the repressions of the day's spa sparked a national debate over privacy rights and the government's ability to secretly record citizen videos while looking for criminal charges.
Finally, the promoters just tied human trafficking charges against a spa operator in Vero Beach, Florida, as part of a criminal extortion charge.
The Jupiter Police Department's month-long surveillance (Florida) Orchids from Asia, a storefront spa that Kraft, 78, visited twice, coincided with similar investigations revealed on February 19, 2019 by the law enforcement agencies of Martin and Indian River counties.
Investigations culminated in the arrests of spa owners and workers, almost 300 male customers and closed 10 massage companies.
Since then, 112 men in Martin and Indian River counties who have faced charges of prostitution for misdemeanor have opted into a pre-trial diversion program, records show. Palm Beach County prosecutors said they were unable to confirm how many of the 25 jailed spa clients agreed to accept diversion deals.
The diversion program required paying $ 350 in investigation costs and attending a class on the negative effects of prostitution and human trafficking, according to state prosecutor Nirlaine Smartt's assistant. When completed, charges are discarded.
Privacy issues, related to the protection of the 4th Amendment against irrational government searches and seizures, have attracted organizations of national defense lawyers and renowned legal experts who come together to support Kraft's protracted legal battle.
Two of these experts, Stephen A. Saltzburg, professor at George Washington University School of Law, along with New York University School of Law Professor Ronald Goldstock, wrote a legal summary criticizing the use of secret cameras by the Jupiter police and warned against intrusion by the "wanton" government that could diminish privacy rights.
"We think the problems are constitutionally significant and go well beyond an investigation or a defendant, but they can affect the rights of all Floridians," Goldstock said in an email.
The formidable fight that Kraft's lawyers fought against two misdemeanor charges brought against him resulted in a May court decision that deleted video the evidence police registered with Orchids of Asia for five days as part of a concealment warrant approved by a judge.
Palm Beach County Judge Leonard Hanser he threw the videos away in part to conclude that the Jupiter police did not comply with the necessary minimization guidelines to prevent the police from recording unrelated activities.
Hanser's order mimics the video suppression decisions issued by three other judges in Palm Beach and Indian River municipalities, that state is trying to bring down in appeals filed at the 4th District Court of Appeal in West Palm Beach.
The designated judges of the 4th DCA – Martha C. Warner; Melanie G. May; and Cory J. Ciklin – consolidated the resources for what could be months of litigation.
The initial instructions have been filed and it is up to the district court to grant the oral arguments that both parties have requested.
If approved, the oral allegations could be made in early summer, the lawyers involved suggested, but a decision could come months later.
A separate court order to suppress spa videos recorded by investigators from the Martin County sheriff, that the state has appealed to a panel of judges from the 19th Judicial Circuit, is waiting for action by the 4th DCA.
State appeals lawyers uphold Hanser's order to suppress the Jupiter police videos cited a failure by officials to minimize an invasion "not in the rights of Mr. Kraft's 4th amendment, but in the rights of certain third parties who have not been charged with any crime".
Specifically, of the 39 massage videos recorded by Jupiter officials, four failed to capture illegal conduct. Two customers were women and two were men.
Florida Deputy Attorney General Jeffrey DeSousa summarized in the state summary that, based on videos captured by cameras inside Orchids of Asia, "Mr. Kraft's fault is a virtual certainty."
He argued that, according to established law, Kraft "has no legitimacy" to claim the rights of the 4th amendment to spa clients who were videotaped but did not engage in sexual acts and were never arrested.
"Sir. Kraft cannot claim that he was recorded illegally paying for sex, because even under a stricter minimization protocol, his conduct would have been captured by surveillance cameras," wrote DeSousa.
"The government can oppose privacy and constitutional rights while avoiding scrutiny and control," wrote Shepherd, who declined an interview request.
"This result would be directly contrary to the Constitution, civil liberties and the rule of law."
Robert Kraft Lawyers: If the state wins a spa video feature, "everyone loses"
A review of several hundred pages of appeals filed through January shows the question of when and how it is appropriate for law enforcement to clandestinely watch and record people is the key to the arguments put forward by the state, Kraft lawyers and other lawyers with spa busts customers.
The scrutiny over much-criticized investigations of the spa also sparked collateral civil disputes against two municipalities and gave law enforcement agencies a chance to evaluate the results and reflect on their methods.
Here's a look by county by county:
Palm Beach County
Asian orchid owner Hua Zhang59, manager; Lei Wang, 40; and two spa employees face dozens of prostitution-related charges, while their lawyers contest the state's appeal, seeking to reinstate the police video recorded inside the spa.
Zhang's lawyer Tama Beth Kudman, from West Palm Beach, said a key issue is a "bright line of privacy", citizens expect while visiting a business location.
“If the police are allowed to get away with what they did here,” she said, “whenever they believe that there is illegal activity in a place of business where ordinary citizens go and can undress, they could theoretically come in and film them. "
Jupiter's police chief, Daniel Kerr, declined to comment.
In April, the city of Jupiter was sued in a federal class action lawsuit filed by a "John Doe", who claimed his rights were violated when he was filmed in a state of undress within Orchids of Asia.
If the case is not the first, records show that a trial is scheduled for June.
Sheriff's lieutenant Mike Dougherty said his agency is not currently using covert surveillance, as they used to video recording in four spas target for seven months.
"We are on the ice until we get the final verdict on the appeal process," said Dougherty. "The last thing we want to do is to violate anyone's rights."
He declined to describe how the cameras were installed in spas, but in March Sheriff William Snyder told WPTV that investigators "put themselves as repairmen" to gain access and place the cameras.
Snyder first disclosed during a press conference on February 19, 2019 what he believed to be possible links to human trafficking, but over time, investigators were unable to bring the charge.
Dougherty said that, based on his observations, they thought human trafficking was taking place.
"Processing them is a totally different story," he said. "But we wanted to try, because if people are being trafficked, we want to prosecute the people who are doing it."
The main barrier, he said, was women's lack of cooperation.
"We needed the victims to cooperate with us and that was the final step we were unable to take," said Dougherty.
He suggested that women fear retaliation against their families or themselves.
Overall, Dougherty said the investigators had few setbacks.
"As the laws were interpreted at the time, we would not change anything," he said.
A man from Jensen Beach was improperly arrested after Martin's detectives mistakenly identified him as sponsoring a raided spa in Stuart. His charges were dropped.
In January, of the 86 men, called "johns", involved in the Martin County spa investigations, 44 entered a diversion program, state prosecutors said. Half ended the program and their charges were removed.
Most women arrested in Martin County had their most serious complaints dropped in exchange for pleading no contest misdemeanor offenses.
Ruimei Li, a spa owner considered an important participant, is serving five years probation for pleading guilty to extortion and other charges. She also had to pay $ 150,000 in research costs.
Indian River County
The city of Vero Beach is still facing a federal lawsuit that claims to represent a class of up to 100 people who suffered an invasion of privacy when the police took "unacceptable and non-consensual footage" during the spa's investigations.