seeking an emergency declaratory judgment that police may not release images, audio, or video obtained from the secret cameras.A central component of the recent investigation into Chinese massage-parlor sex was the secret installation of hidden cameras at the Orchids of Asia Day Spa in Jupiter, Florida. Now defense attorneys are challenging the legality of this move. On February 25, the law firm Kibbey Wagner filed paperwork in Martin and Palm Beach counties
Permission for such surveillance stems from a provision of the PATRIOT Act that was passed with promises only to use the power against possible terrorists. "But the tactic has spilled over to infiltrating other crimes, most recently the alleged sex acts at the Jupiter business," notes Lisa J. Hurriash at the South Florida Sun Sentinel. "In such cases, so-called sneak-and-peek warrants let authorities access private property so the government can secretly do a search without notifying people under investigation."
In this case, police secretly filmed massage rooms in January 2019 after months of prior investigation into prostitution at Ochids of Asia and other local massage parlors. Caught on camera getting a massage and maybe more were New England Patriots owner Robert Kraft and dozens of other men, who now face misdemeanor charges for allegedly soliciting prostitution. Workers and managers at the businesses were also arrested and stand accused of prostitution and racketeering.
Police were able to secretly install the surveillance cameras thanks to a sneak-and-peek warrant. Such warrants were sold after 9/11 as a way to stop terrorism, but in practice they've mainly been used in investigations of drug crimes.
Of the more than 11,000 such warrants issued in 2013, for instance, only 50 were related to terrorism; 9,401 were parts of drug investigations. In 2011, 5,093 of 6,775 requests for sneak-and-peek warrants were related to drug cases; just 31 were related to terrorism. "Exactly what privacy advocates argued in 2001 is happening: sneak and peak warrants are not just being used in exceptional circumstances—which was their original intent—but as an everyday investigative tool," the Electronic Frontier Foundation warned five years ago.
Now they're being used to stop prostitution under the guise of busting up international slavery rings.
To see such a tool used to investigate prostitution is "very, very troubling," according to University of Miami law professor Celeste Higgins, who spent 25 years as a federal public defender in southern Florida. "Putting devices into locations is really the ultimate invasion," she tells the Sun-Sentinel. "How is this a terrorism case?"
It's not, of course. But just as local cops and federal authorities have used anti-terrorism tools to prosecute potheads, they've been keen on attacking all prostitution (a misdemeanor crime under local laws throughout most of the U.S.) as "human trafficking," a federal crime. Police in Palm Beach and Jupiter counties have been trotting out that claim this time too, although no sex trafficking or forced labor charges have been filed.
As with so much of this case, that claim looks strange in light of the fact that the authorities spent months visiting and watching these businesses but not rescuing the women that they now say they suspect are trafficking victims. "Why would you allow an investigation to go on...and allow human trafficking?" defense attorney Marc Shiner asks in the Sun-Sentinel article. "That's like being raped on a daily basis. Why would the police condone such behavior?"
Several folks quoted by the Sun-Sentinel suggest that this case represents an unprecedented use of sneak-and-peek warrants—but that's not true even within Palm Beach County. As the same paper noted in 2014, Palm Beach authorities ran a similar massage-parlor sting operation back in 2007. They used a sneak-and-peek warrant to install cameras and catch sex acts on video back then, too.
In that case, one massage parlor worker was arrested for prostitution and 25 men were arrested for solicitation of prostitution. One woman in her fifties wound up charged with permitting an employee to practice massage without a license, living off proceeds from prostitution, and money laundering, but the case against her was eventually dropped.
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