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

Legal Issues

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.

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