Court Tosses Surreptitious Video Recordings Holding Together Sketchy 'Human Trafficking' Investigation

from the ringing-up-investigators-on-solicitation-charges-for-fucking-themselves dept

In early 2019, law enforcement in Florida wrapped up a supposed "human trafficking" sting centering on Florida spas and massage parlors. By the time prosecutors and cops were done congratulating themselves for helping purge Florida of human trafficking, they appeared to have little more than about 150 bog-standard solicitation and prostitution arrests.

But they did land a big fish. Robert Kraft -- the owner of the New England Patriots -- was one of the spa customers caught up in the sting. That was the biggest news. Evidence of actual trafficking never appeared, leaving law enforcement with a big name, a bunch of low-level arrests, and little else.

What little law enforcement and prosecutors did have is now gone as well. Upholding a lower court's decision on video evidence captured by hidden cameras, a Florida state appeals court says everything captured on the government's secret cameras was illegally obtained. (via FourthAmendment.com)

This conclusion was reached even though investigators obtained warrants for the cameras. Here's the backstory on the video recordings, taken from the decision [PDF]:

The Jupiter detective then applied for a warrant to install secret, non-audio video cameras in the spa and to monitor and record the video. A magistrate issued a warrant allowing police to install hidden cameras at the spa in places where prostitution was believed to be occurring and in the lobby. The warrant prohibited cameras in areas where prostitution was not suspected, such as the kitchen, bathroom, and personal bedrooms.

The warrant allowed non-audio video recording for no more than five days to obtain evidence of prostitution and the felony offense of deriving support from the proceeds of prostitution. The warrant did not discuss or otherwise direct any police conduct related to “minimization,” and the detectives were not given any type of formal written instructions about how to minimize.

Using a phony bomb threat to clear the building, police installed hidden cameras in four of the spa’s massage rooms and in the lobby. Three detectives monitored and recorded video from the hidden cameras over five days. The cameras recorded video continuously, but Jupiter detectives monitored the video feeds only during business hours.

The detectives toggled between the video feeds when they displayed or when they thought they might soon display criminal conduct. They focused on the end of the massages because the sexual conduct typically occurred at the end. In all, police recorded 25 spa customers pay for sexual services. Ten more customers were suspected to have paid for sex, but the offenses could not be confirmed due to dim lighting. Four customers, including two women, were recorded who did not engage in illegal activity.

The same thing happened in other locations. Cameras were surreptitiously installed and monitored by other law enforcement agencies. Technical limitations and hardware glitches resulted in some legal massages being recorded along with those involving sexual acts. In total, multiple spas were surveilled for more than 60 days. While some effort was made to minimize the recording of legal acts or activities not related to possible prostitution and solicitation, this didn't appear to be much of a concern to investigators.

That led to the lower court throwing out the evidence because officers and investigators did not make enough of an effort to minimize intrusion or avoid recording activities outside of the scope of the warrants. The state appealed, claiming three things:

First, it said none of the defendants had any expectation of privacy in their activities at the massage parlors. It also claimed the Fourth Amendment does not contain a "minimization" requirement. Finally, the state argued even if it was wrong about its two previous arguments, investigators should be awarded "good faith" for not knowing any better.

Wrong, says the court. Of course the defendants have standing. The expectation of privacy doesn't disappear just because they've stepped out of their own homes and into a massage parlor.

The spa-client defendants in all of these cases had a subjective and objectively reasonable expectation of privacy in the massage parlor rooms. The surveillance took place in a professional private setting where clients are expected to partially or fully disrobe. The spa owners and their employees also had a reasonable right to expect that the interactions with nude or partially nude clients in the massage rooms would not be exposed to the public. As soon as the door to the massage room was closed, they had a reasonable expectation of privacy.

The court also dispenses with one of the state's more ridiculous arguments: that the people caught on tape engaging in criminal activities had no expectation of privacy because they were engaging in criminal activity.

The state also argues that the spas were primarily used as a brothel, as most of the customers who were recorded and monitored engaged in unlawful activity, and thus, the state asserts, the defendants cannot rely on the Fourth Amendment rights of third parties who had their innocent conduct recorded. However, as case law shows us, Fourth Amendment rights are nearly always safeguarded by those who are criminally prosecuted. [...] Consequently, the state’s circular argument that the defendants lacked a privacy interest because they were engaging in criminal behavior is uncompelling.

The state's assertion that the Fourth Amendment contains no minimization requirements is correct as far as the plain text is concerned. But jurisprudence has developed quite a bit since 1789, when video surveillance was nonexistent and unimaginable.

[T]he Tenth Circuit adopted “five requirements for video surveillance that define more specifically the probable cause and particularity requirements of the fourth amendment,” and which requirements expressly include the minimization requirement: An order permitting video surveillance shall not be issued unless: (1) there has been a showing that probable cause exists that a particular person is committing, has committed, or is about to commit a crime; (2) the order particularly describes the place to be searched and the things to be seized in accordance with the fourth amendment; (3) the order is sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation

The warrants obtained in this investigation are faulty because they ignored this crucial prerequisite for video surveillance of private places.

The warrants at issue did not set forth any specific written parameters to minimize the recording of innocent massage seekers, and law enforcement did not actually employ sufficient minimization techniques when monitoring the video or deciding what to record. In all the investigations, some innocent spa goers were video recorded and monitored undressed. There was no suggestion or probable cause to believe that female spa clients were receiving sexual services, yet law enforcement largely failed to take the most reasonable, basic, and obvious minimization technique, which was simply to not monitor or record female spa clients.

This is exceptionally careless given the technology involved.

The most egregious example is the investigation by the Vero Beach Police Department in the Freels case where the cameras recorded continuously for 60 days. Thirty days’ worth of unmonitored recordings remain in the police department’s possession in that case. Other innocent spa clients may have been recorded nude – or partially undressed – on those days. Those innocent clients potentially live with the knowledge that nude videos of themselves are preserved on a server somewhere with unknown accessibility. In our ever increasingly digital world filled with hackers and the like, such awareness renders the surveillance a particularly severe infringement on privacy.

There's no good faith here either. Video surveillance has been around for decades. Investigators can't just ignore long-standing policies and court precedent and expect their "errors" to be treated as inadvertent.

We cannot conclude here that the law enforcement agencies acted in good faith with respect to minimization due to the lack of Florida law on point. The warrant applications themselves cited the decades-old federal law (such as Mesa-Rincon) setting out the requirements for obtaining a warrant to conduct secret video surveillance in private locations, including the need to minimize the recording of innocent conduct. These citations negate a finding of ignorance of minimization requirements.

Your ignorance, stupidity, and haste is your own fault, the court says to the state. Everything you had is gone because law enforcement decided to ignore years of well developed jurisprudence to engage in a human trafficking investigation that has yet to uncover any human traffickers.

The federal case law cited herein pertaining to silent video surveillance is well reasoned and widely accepted. Consequently, we must hold—as every federal circuit court and state court to consider the question has— that this type of intrusive, covert video surveillance is subject to heightened standards and procedures designed to implement Fourth Amendment protections, particularly in the face of the constantly expanding use of electronic surveillance techniques by law enforcement. And where the government fails to faithfully follow these standards and procedures, it will be held to account by the exclusion of the evidence obtained. The Fourth Amendment demands no less under these circumstances.

The Fourth Amendment makes demands of law enforcement. This isn't a new thing. It's been there since these two entities began their uneasy coexistence. But far too often, law enforcement is unwilling to uphold its end of the bargain. And let's not lose sight of what actually happened here, which goes beyond the multiple rights violations: cops deployed the video equivalent of wiretaps to catch sex workers and their customers. This sort of intrusion is supposed to be reserved for only the most serious of crimes and the most dangerous of criminals, as the concurrence points out:

The authorization of electronic or video surveillance for petty crimes as a steppingstone in an effort to investigate more serious offenses would make a mockery of the designated crime requirement. Such a subterfuge would violate the princip[le] that continuous invasions of privacy must be reserved for occasions when the need to do so was critical. . . . Florida law provides no basis for seeking a warrant for electronic eavesdropping of conversations in a misdemeanor prostitution case, and there is no reason to believe that either the legislature or judiciary would want to permit such warrants when intrusive video surveillance is at issue.

And this is yet another reason why the surveillance in this case was unlawful: there's no Florida law that permits it.

Neither the Florida statutes, nor case law authorize covert audio surveillance to investigate prostitution-related offenses. It follows that the more intrusive video surveillance is also prohibited, providing yet another basis for affirmance.

All the state has now is a bunch of petty charges it may not be able to make stick without these surreptitious recordings. If cops were really trying to break up a trafficking ring, they have failed miserably and put potential victims right back into harm's way. If investigators and cops were just looking to hassle some minorities and get a few handjobs on the clock, well, then this operation was still a success.

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Filed Under: 4th amendment, evidence, florida, massage parlor, robert kraft, trafficking


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  • icon
    Koby (profile), 2 Sep 2020 @ 9:56am

    Bait and Switch

    This doesn't sound like a case of human trafficking if all the charges are based around the customers, all and all at one static location. It sounds like the human trafficking claim was just a cheap excuse to install hidden cameras.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 3 Sep 2020 @ 1:27am

      Re: Bait and Switch

      "It sounds like the human trafficking claim was just a cheap excuse to install hidden cameras."

      Hitchen's razor, once again. I'm more inclined to believe a group of officers with either a severe case of dunning-krugers and/or a burning urge to demonstrate they could pull off a proper investigation ended up screwing themselves by just tossing resources at any complaint likely to yield results.

      What really irks me is their defense;

      "First, it said none of the defendants had any expectation of privacy in their activities at the massage parlors..."

      That argument sort of rules privacy out, period. I can't imagine very many more private settings than secluded sessions with a form of physical therapist. That sort of logic opens your bathroom and bedroom as well.

      "...It also claimed the Fourth Amendment does not contain a "minimization" requirement..."

      In other words they're claiming that a given constitutional amendment isn't practically applicable. That compares splendidly to arguments like "But Mom, you only said I couldn't have a cookie, not that I couldn't eat the whole box!".

      "...Finally, the state argued even if it was wrong about its two previous arguments, investigators should be awarded "good faith" for not knowing any better. "

      So basically; "Your honor, we're dumber than a bag of hammers and since we're too inept to do our job you should cut us some slack and give us a prize for the unusable mess we presented anyway."

      I have no words.

      reply to this | link to this | view in chronology ]

      • identicon
        Kitsune106, 3 Sep 2020 @ 2:35am

        Re: Re: Bait and Switch

        Ooooh. So they just said cops have no expectation of privacy too. So Public servants. So cops not identifying or getting pissed off by recording. So government will repeal wiretap laws against publix servants as they should not expect privacy then?

        reply to this | link to this | view in chronology ]

      • icon
        Upstream (profile), 3 Sep 2020 @ 3:47am

        Re: Re: Bait and Switch

        "...Finally, the state argued . . . investigators should be awarded "good faith" for not knowing any better. "

        Unfortunately, this argument is standard practice for law enforcement. They go so far as to purposely not provide officers with relevant education and training to try to help bolster this BS. Often, the courts go along with it.

        As someone else mentioned, there is no down-side for the cops. They get to run this cool "op," watch a bunch of fun video, and when it all turns to crap, they just go on to their next violation of citizens rights. Without real accountability, such as prison, permanent loss of LE certification, etc, there will be no end to such abominations.

        With law enforcement's current status as standing army for the government, real accountability is not likely.

        reply to this | link to this | view in chronology ]

        • identicon
          Kitsune106, 3 Sep 2020 @ 5:31am

          cop, army?

          there discipline is bad... and Undercover cops adn plainsclothes are... enemy combatants... as no uniforms. teh military has more dsicipline then the cops. two different tactics and mindsets....

          reply to this | link to this | view in chronology ]

        • identicon
          Kitsune106, 4 Sep 2020 @ 6:43am

          Re: Re: Re: Bait and Switch

          For the good faith, civilians should get to use it too.

          If people who should.know better do not, well....

          Love to try this excuse for osha and others. "We E did not know illegal"

          Ignorance of law no excuse... Unless cop. So one of his.must change. And since police are government so ignorance of law Must be excuse....

          And weird how they do.not believe in responsibility and deference when it comes to own side.....

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2020 @ 9:59am

    Now, punishment time

    The police will not learn unless they are punished for violating the law and the rights of those innocent people they now have recordings of. If any of those people happen to be under 18, I believe production of child pornography would also apply. If I were one of the females who used the parlor during that time period, I would be demanding both compensation for my rights being violated and that every copy of the video and any data taken from it, is destroyed.

    If they are found to be in violation again, strip everyone involved of all powers, including the judge, and force them to walk around nude for 1 month in public. They clearly don't care about innocent people having their bodies on display so why should they get a free pass.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2020 @ 10:02am

    There go the cops again, thinking with their dicks.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2020 @ 10:35am

    Round up all the third parties since they can't get the only important big fish I guess

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 2 Sep 2020 @ 11:25am

    But, they had 'permission'

    I bet that magistrate judge who authorized the warrant spoken of in the article is really embarrassed now, that is if they still hold their job.

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 2 Sep 2020 @ 11:36am

    Law enforcement for fun and profit

    This fishing expedition for "human trafficking" would appear the fall under the "fun" category of preferred law enforcement activities. This is just a bunch of voyeuristic cops watching massage parlor activity. It seems that while "human trafficking" makes for splashy headlines and much pearl-clutching, it is actually quite rare in the US. Not that it doesn't happen at all, but in an open-to-the-public massage parlor? Not likely!

    Even for some other activities that allegedly occurred at some point on a remote, inaccessible, privately owned island, the term "human trafficking" is probably much more emotionally inflammatory than accurate.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 2 Sep 2020 @ 12:13pm

      Re: Law enforcement for fun and profit

      You're right, and come to think of it, the purported purpose of the surveillance was trafficking. How did they intend to go about proving trafficking by video taping relatively stationary people? Wouldn't proving trafficking take people crossing a border (even a state line, or between cities) or something? In other words, some travel. Then they would have to prove the intent of the travel was for the nefarious purpose of sex. Then, the sex traffickers aren't the ones performing the sex act, but the ones that induced the travel (presumably under duress).

      So the supposed purpose of the surveillance and the activities surveilled had nothing to do with trafficking.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 2 Sep 2020 @ 12:49pm

    Can I get a copy of my tape,

    Please???

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 2 Sep 2020 @ 1:49pm

    For some idiots "human trafficking" and "sex worker" refer to the same thing... as if they have the right to decide what other people choose to do with their own bodies.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 2 Sep 2020 @ 1:59pm

      Re:

      And thats the funny Thing about all this.
      Allot of prostitutes were going independent, and bypassing the Handlers/drug dealers/Pimps.
      And for SOME god awful reason, some rich folk think a person DOING WHAT IS NEEDED to survive, is a bad thing. Or they are jealous because the hooker is making more money in 1 day, then a 40 hour worker. Its fun to know that many Advanced nations have made it Legal.

      reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 3 Sep 2020 @ 10:43am

        Re: Re:

        Or they are jealous because the hooker is making more money in 1 day, then a 40 hour worker. Its fun to know that many Advanced nations have made it Legal.

        America was founded by puritans and unfortunately, they're still here, they just wear different clothes now.

        reply to this | link to this | view in chronology ]

  • identicon
    TheDumberHalf, 3 Sep 2020 @ 1:34pm

    War on Prostitution

    This whole thing feels like the war on drugs - where nothing really changes or gets done, leaving the little guys in the crossfire.

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 13 Sep 2020 @ 3:32pm

    Missing the Key Benefits

    Not only do the cops get fun videos, but in many of these investigations they also get free entertainment from the girls in question. If not directly free, sometimes the city will pay the fees assessed by the girls. This is treated as investigation expenses.

    It does not always turn out well. A few years ago here in the City, cops used city funds to pay the ladies. Then. when it all came out, there was humiliation and divorce for at least one of the involved officers. I do not recall that they were asked to reimburse the city treasury, however.

    reply to this | link to this | view in chronology ]


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