Robert Kraft and Florida Massage Workers Are Still Fighting Unconstitutional Surveillance Video

"Supreme Court jurisprudence...is heavily weighted against you," an appeals judge told state prosecutors last week.

Florida is advocating for a dangerous narrowing of due process in its quest to justify surveillance video recorded at Asian massage parlors. The state is arguing that it didn't violate the Fourth Amendment in letting secretly-installed cameras run for weeks on end⁠—making no attempt to limit recordings to particular activity or suspects⁠—as part of prostitution stings in Palm Beach and Indian River counties, an endeavor that yielded solicitation charges for New England Patriots owner Robert Kraft.

Kraft is one of a number of people still challenging the state's surveillance methods and intent to use the footage in court, nearly a year and a half after he was charged for allegedly getting handjobs after two massages at Orchids of Asia in Jupiter, Florida.

"They knew that this was never a human trafficking case. Law enforcement knew it," Kraft's lawyer, Derek Shaffer, told the court during the Zoom-enabled oral arguments on June 30.

The two women accused of offering Kraft sex acts are also part of the fight against the videos. So is Orchids of Asia owner Hua Zhang, and a number of men charged with solicitation following surveillance at another Chinese-immigrant staffed massage business, East Spa, a bit up the coast in Vero Beach.

Overall, the series of investigations spanned four Florida counties and several businesses, though police only installed (that we know of) cameras at two. At Orchids of Asia, police pretended there had been a bomb threat to get inside and install the cameras.

Not long after, in February 2019, many massage parlor workers, owners, and customers were arrested. State prosecutor Dave Aronbeg and other local law enforcement initially sold it as a "human trafficking" bust of an international crime ring that freed Chinese women from "modern-day slavery."

But no sex trafficking, forced labor, or assault charges were filed. "There is no human trafficking that arises out of this investigation," said Assistant State Attorney Greg Kridos at a court hearing last year. Meanwhile, court documents revealed the case was always ridiculously weak, casting legal immigrants and licensed masseuses working at registered, tax-paying businesses as sex slaves because some of them also engaged in sex work⁠—while also reserving the harshest charges for these women.

"The state promptly offered plea deals involving community service and fines to the men who had been secretly, and likely unconstitutionally, surveilled," notes Aya Gruber in her new book The Feminist War on Crime. "The Asian female Orchids employees, by contrast, were hit with an array of felony and misdemeanor charges related to prostitution and profiteering and faced a maximum of 15 years for the felonies and up to a year for each of the misdemeanors," which were numerous.

The deal⁠ for the men—which also required completion of a course about why prostitution is bad⁠ and attesting that they would likely have been found guilty if the case had proceeded—would wipe the charges for them if they completed the mandates. Instead, Robert Kraft, East Spa customer Robert Freels, and others opted to challenge the constitutionality of the surveillance footage.

A court took their side, ruling in May 2019 that the video evidence was not admissible in any of the cases because authorities had obtained it through unconstitutional means.

But Florida appealed right away, sending the matter before the state's Fourth District Court of Appeals, where it now sits. In its appeal, the state argues that "even assuming a constitutional violation, suppression of the videos was not an appropriate remedy," since footage ultimately provided "evidence of…prostitution offenses."

The state essentially argues that a fishing expedition is OK so long as it ultimately yields some fish. But that's not how it works.

(The state also writes that it hadn't meant to record footage continually on all cameras for the entire surveillance period, but "after installing the cameras in the spa, Detectives … learned that they could not control entirely which video feeds would be recorded.")

Florida's claims about due process aren't much better. It argues in its appeal that "there was nothing constitutionally unreasonable about this search," because the Fourth Amendment merely requires "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The consolidated cases—Florida v. Robert Kraft, Florida v. Robert Freels et al., and Florida v. Hua Zhang et al.—were argued before the state appeals court on June 30.

Presiding Judge Robert M. Gross did not seem impressed by the state's textual argument during the hearing, where a three-judge panel heard from lawyers for Kraft, Zhang et al., Freels et al., and the state.

"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 Florida Deputy Solicitor General Jeffrey DeSousa.

For more about the case, here's a podcast I did with Caleb Brown of the Cato Institute last week.

https://player.acast.com/cato-daily-podcast/episodes/why-florida-still-pushing-prostitution-charges-robert-kraft