Five things about judge’s ruling tossing video evidence in Robert Kraft case

Alex Spiro, attorney for Robert Kraft, during a May 1 hearing during which he argued surveillance videos allegedly showing Kraft paying for sex at a Jupiter, Fla., day spa should be ruled inadmissible. AP/Pool Palm Beach Post via AP

Robert Kraft scored a major legal victory Monday when a judge tossed video footage that allegedly captured the Patriots owner paying for sex acts inside a Jupiter, Fla., spa in January.

The ruling is potentially fatal to the prosecution’s case charging Kraft, 77, with two misdemeanor counts of soliciting prostitution inside the Orchids of Asia Day Spa. Kraft has denied engaging in illegal activity, pleaded not guilty, and requested a jury trial.

Here are five key excerpts from Judge Leonard Hanser’s ruling suppressing the video footage, a decision that bars prosecutors from showing the clips to jurors at trial.

1] Minimization: Hanser found the search warrant police obtained to secretly install cameras inside the spa lacked instructions for minimizing the impact of recording lawful conduct.

Hanser wrote that the warrant “does not address how to minimize the impact of video surveillance on female Spa clients. All of the assertions of illegal activity in the search warrant suggest or describe only male genital stimulation. ... However, the Spa advertised services for women clients and, in fact, more than one woman had a significant portion of her Spa time viewed by a detective-monitor and the entirety of her spa time recorded and placed in Jupiter Police Department records.”

Hanser said failing “to consider and include instructions on minimizing the impact on women, through a highly intrusive law enforcement technique in a setting with a high legitimate expectation of privacy, is a serious flaw in the search warrant, especially considering that the search warrant did not allege women were seeking illegal contact.”

2] Implementation: Hanser also found that investigators failed to properly implement minimization techniques during the five-day sting.

He wrote that there were no “written guidelines provided to detective-monitors to direct their minimization. Consequently, the detective-monitors did not have a common standard to guide them as to how they were to minimize surveilling innocent behavior or behavior that did not rise to the level of probable cause. The detective-monitors were simply left to their own standards and devices to satisfy the minimization requirement. One of the detective-monitors testified about discussing minimization with a spouse who also works in law enforcement. The other detective-monitor testified that he relied on previous experience in determining what and how to minimize. Knowledge about minimization in general does not satisfy the minimization required in a specific setting, especially one with a legitimately high expectation of privacy.”

3] Fourth Amendment: Hanser found Kraft had standing under the Fourth Amendment, which protects against unreasonable searches and seizure, to challenge the search warrant authorizing the hidden cameras.

According to the ruling, “The alleged criminal activity occurred not in a home, where the most stringent Fourth Amendment protection is granted, but in a commercial setting. ... While Defendant was an invitee of the business establishment in which the alleged acts occurred, the Court finds it clear that he had a reasonable, subjective expectation of privacy, as would anyone seeking a private massage in a commercial or professional setting, and that the activity in that room would remain private. Seeking even legitimate services in a spa normally involves removing all or most of a person’s clothing, behavior almost as private as would occur in a home. Furthermore, the expectation of privacy is one which this Court believes society objectively supports as reasonable.”

4] Speaking of reasonable: While Hanser tossed the video evidence based on the failure of authorities to minimize the recording of lawful conduct inside the spa, he didn’t buy Team Kraft’s argument that cops were wrong to use hidden cameras before trying other tactics such as deploying undercover officers.

Hanser wrote, “The Court finds Defendant has failed to prove by preponderance of the evidence that the highly intrusive technique of surreptitious video surveillance is unreasonable under the circumstances. ... The video surveillance of the lobby and front desk is clearly acceptable as this is a public area of the Spa where a client would have a very low expectation of privacy. That expectation of privacy increases exponentially when the client enters one of the massage rooms; however, the unique circumstances of a massage room creates the need for an unusually intrusive law enforcement technique. That other agencies may have employed different law enforcement techniques is not persuasive to this Court, especially considering the risk of alerting the Spa to being the subject of an investigation.”

5] Traffic stop: Cops identified Kraft and the other alleged johns by pulling over their vehicles after they left the spa. Hanser’s ruling also tossed evidence gleaned from the traffic stop of the vehicle Kraft was riding in after his first visit to the spa.

The judge wrote, “Immediately after Defendant left the Spa on Jan. 19, 2019, and after video surveillance captured his image in real time, he was followed by a Jupiter Police Department officer who then notified another officer to stop the car in which the Defendant was a passenger. The stopping officer obtained the identification of Defendant through the stop; Defendant’s identity was not known to law enforcement before he was stopped. Therefore, all information obtained through the stop is suppressed as the fruit of an unlawful search.”