The Fourth Amendment Downs 'Video Voyeurism' in Kraft SpaGate Case

Client Alert
August 21, 2020

On Wednesday, Florida’s Fourth District Court of Appeal affirmed a lower court decision excluding video evidence that Florida prosecutors sought to use in their case against hundreds of men who allegedly patronized the Orchids of Asia Day Spa in Jupiter, Florida, including—most notably—New England Patriots owner Robert Kraft. The decision, touted by defense attorneys as a victory for the Fourth Amendment, cites the lack of "minimization" efforts taken by the police in its video surveillance of hundreds of spa patrons of the course of a multi-month sting operation, allegedly capturing acts of prostitution.

This decision follows federal precedent requiring that warrants requesting video surveillance specifically outline how efforts will be made to "minimize" surveillance of innocent parties, and expands upon Florida’s own minimization requirements regarding wiretaps and audio surveillance.

Three issues were certified for appeal by the county court trying Kraft’s case: (1) Whether Kraft and others had a legitimate expectation of privacy—and thus standing—to challenge the video evidence introduced in this case; (2) whether the warrant that authorized the video surveillance satisfied Fourth Amendment requirements; and (3) whether the police executed the surveillance in a manner that satisfied the Fourth Amendment requirements.

Under long-established Supreme Court precedent, a defendant can move to exclude evidence when that evidence’s collection violates the Fourth Amendment.  In order to have standing to move to suppress such evidence, a defendant must have had a legitimate expectation of privacy which the surveillance intruded upon. A legitimate expectation of privacy requires both a subjective expectation of privacy, and a societal recognition that that subjective expectation is reasonable. As the Florida appellate court reasoned, the defendants here had a subjective expectation of privacy once the door to their room closed (in that they believed they were in a private setting), and society recognizes this expectation as reasonable.

Furthering this point, the Florida appellate court cited Florida’s statute criminalizing “video voyeurism,” which defines areas where people are likely to disrobe as meeting the expectation of privacy requirements and proscribes merchants from recording such areas. Fla. Stat. § 810.145(1)(c) (2019). Ultimately, the Florida appellate court concluded that the defendants had a legitimate expectation of privacy in the massage rooms, and thus had standing to challenge the admission of the video surveillance.

The prosecution argued that the Fourth Amendment text lacks any explicit minimization requirement, and thus that police were not required to minimize the video surveillance efforts. The Florida appellate court rejected this argument, describing video surveillance as "perhaps the most intrusive form of electronic law enforcement spying." Citing extensively from the 1990 Mesa-Rincon case decided by Tenth Circuit, the Court held that video surveillance is subject to certain heightened requirements, including that measures be outlined in the warrant and carefully followed in its execution to minimize the surveillance of innocent parties. While no explicit minimization requirement for video surveillance had yet been recognized in Florida statutory or decisional law, the Florida appeals court noted that such minimization requirements have been consistently imposed on audio surveillance and wiretapping operations, far less intrusive forms of surveillance.

The minimization requirements imposed by the trial and then appellate courts follow federal and state court precedent and should come as no surprise to Fourth Amendment scholars. Although the prosecution argued that suppression should be applied only to video depicting innocent massage seekers, it is well established that where the government does not comply with Fourth Amendment requirements, all evidence pursuant to these nonconforming tactics must be suppressed under what is known as the "exclusionary rule."

Prosecutors sought to invoke the "good faith" exception to the exclusionary rule, arguing that there was no reason for police to know that the warrant was deficient for lack of minimization requirements. But the Florida appeals court rejected this argument, noting that the warrant applications themselves cited the Mesa-Rincon case (requiring minimization efforts), which negates any claim of ignorance.

While a lay observer may see this suppression of powerful video evidence as "flying in the face of justice," it merely represents the continued evolution of Fourth Amendment protections as the law adapts to new technologies.

In the end, the prosecution’s failure on the Fourth results in a turnover on downs.

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