The offices of the Florida Attorney General and Solicitor General have petitioned the appellate court to reverse Judge Hanser’s suppression order from last May.
Robert Kraft is many things. Father. Billionaire. Owner of the New England Patriots, New England Revolution and the esports franchise Boston Uprising. Trustee for the Dana-Farber Cancer Institute. He's a 78-year-old resident of Massachusetts. An alumnus of Harvard Business School and Columbia University.
According to prosecutors in Florida, “felon” should be added to the list.
This assertion is raised in a brief recently filed by Florida Attorney General Ashley Moody, Florida Solicitor General Amit Agarwal and Deputy Solicitor General Jeffrey Paul DeSousa to the Fourth District Court of Appeal of Florida.
The state’s appeal concerns a
ruling last May by Judge Leonard Hanser of the Palm Beach County Court. Judge Hanser effectively gutted the solicitation case against Kraft by suppressing video and other evidence obtained pursuant to a so-called “sneak-and-peek” search warrant. Such a warrant contemplates law enforcement entry into a private home or place of business without the owner’s consent or knowledge. In this instance, a state magistrate judge had approved a sneak-and-peek warrant related to Kraft. It authorized local police to enter the Orchids of Asia Day Spa in Jupiter under false pretenses and then install hidden cameras in different rooms. Orchids of Asia Day was one of 10 spas targeted in a state investigation into prostitution and related crimes.Without admissible video evidence, the case against Kraft likely collapses. This is particularly true if witnesses are unavailable, unable or unwilling to offer testimony that would convince a jury beyond a reasonable doubt that solicitation occurred.
Revisiting the case against Kraft
As much discussed by national media last spring, law enforcement investigated Kraft’s conduct in and around the spa on Jan. 19 and Jan. 20, 2018. Police officers learned that scores of men, including Kraft, had used the spa not for lawful massages but instead for illicit sexual services. This knowledge was obtained through searches of nearby dumpsters, visual observation of men entering the spa and witness interviews. Initially, prosecutors contended that the prostitution activities were part of a larger human trafficking operation. They later backed off that assertion when the evidence didn’t support it.
The case against Kraft, as noted above, hinges on the admissibility of video evidence. There is controversy as to how the video evidence was produced. Police officers created a ruse—a fake bomb threat—to evacuate the spa’s employees. Officers then installed five hidden cameras, four of which were placed in massage rooms. The cameras ran continuously for five straight days, including on Jan. 19 and Jan. 20. Sound wasn’t recorded but imagery was captured.
Police narratives indicate that Kraft is shown entering the spa, paying cash to a woman who worked at the front desk, walking into a spa room, disrobing, hugging a woman and then laying on the massage table. Sexual acts then occurred, followed by Kraft putting his clothes back on, handing $100 in cash to a woman, leaving the spa and, lastly, walking towards an adjacent parking lot. Kraft then entered the passenger side of a parked Bentley. The car and its driver had been waiting for him.
Kraft was charged with two counts of first-degree misdemeanor solicitation in violation of Florida Statute 796.07. This statute prohibits prostitution and related acts. Possible penalties include a one-year jail sentence. Defendants usually reach plea deals in which, in lieu of serving jail time, they simply pay a fine, agree to perform community service and complete an education course. Kraft refused to take a plea deal along these lines. That decision proved wise when Judge Hanser suppressed the evidence.
While Kraft has thus far won the litigation, he has not disputed the prosecution’s basic retelling of events—namely, that he paid for sexual acts. Kraft publicly apologized last March for disappointing his family, friends and fans. Although Kraft neither admitted to committing a criminal act nor explicitly referenced prostitution, his statement made clear that he regrets his actions.
Even if one believes that prostitution ought to be legal or doesn’t regard prostitution as a “big deal," the fact is, prostitution is illegal in Florida and in 48 other states (Nevada licenses brothels in a regulated and limited framework). Prostitution is also associated with the degradation and mistreatment of women.
Kraft wins motion to suppress evidence
While Kraft has acknowledged a lapse in moral judgment, both Kraft’s attorneys and Judge Hanser maintain that law enforcement fumbled in a more consequential way. As mentioned above, the hidden cameras ran continuously for five days. You don’t need to be an attorney to feel concerned about that type of invasive and boundless investigative technique—particularly in rooms in which people take off their clothing.
As Americans, we have a Fourth Amendment right against unreasonable searches. A hidden recording by law enforcement is a type of search. The government must have probable cause that a person is partaking in a crime in order to secure a search warrant. A judge (typically a magistrate judge) who reviews a prospective warrant will also weigh the privacy interests of the targeted person or persons .
Judge Hanser identified two core problems with the spa investigation and its accompanying search warrant.
First, spa customers are owed a heightened expectation of privacy because of the nature of spa services. Customers typically remove all or most of their clothing in a private room. Another person (the masseuse or masseur) then touches their body. It’s true that Orchids of Asia Day is located in an ordinary shopping plaza and it’s true that people who enter most stores found in an ordinary shopping plaza would not expect much privacy—think of when you enter a restaurant or a coffee shop, you recognize you are in a public setting and that security cameras may be watching you. A spa, Judge Hanser reasoned, is qualitatively different, especially with respect to private massage rooms. While time spent in a spa commands a lower degree of privacy than citizens expect in their homes, Judge Hanser acknowledged, it still requires more privacy than found in other types of stores.
Second, Judge Hanser concluded that the hidden cameras should not have run continuously. The government is obligated to ensure “minimization” in its surveillance of citizens. Minimization generally requires that law enforcement turn off cameras when it is clear that only lawful activities are being filmed. Likewise, filming is generally supposed to stop when the subjects on video are law-abiding people who are unrelated to the search. To the extent unlawful recordings are produced, they should be deleted as soon as possible.
No such minimization occurred with the surveillance at Orchids of Asia Day. The recordings didn’t stop and start—the cameras kept running. As a result, women and men customers who received lawful massages were recorded with their clothes off. Those recordings weren’t deleted, at least not initially. They instead became police records and took the form of digital files on government servers.
Unpacking the state’s appeal—and the threat of charging Kraft with a felony
The offices of the Florida Attorney General and Solicitor General have petitioned the appellate court to reverse Judge Hanser’s suppression order.
A core theme in the state’s appeal is the assertion that Judge Hanser misunderstood or misapplied the law. The state maintains that the judge held the government to a higher standard than is consistent with U.S. Supreme Court precedent and other case law. To that end, the state stresses that the obligation of law enforcement to minimize is not absolute. It is, the state maintains, contextual. As noted in the state’s brief, the U.S. Supreme Court has upheld the lawfulness of search warrants where as many as 60% of the recordings were non-pertinent to a search warrant. Here, the state maintains that only about 10% of the recordings of the Orchid Day Spa were non-pertinent to the warrant.
The state furthers emphasizes that police are not obligated to utilize “perfect foresight” when executing a search warrant. This point is designed to frame law enforcement’s requirement to minimize as one that ought to be judged not in hindsight but rather based on what law enforcement knew, or should have known, at the time. To that end, the appeal contends that law enforcement “reasonably believed that virtually all of the conduct occurring there was criminal, since all four of the patrons they stopped leaving the spa confessed to paying for prostitution. So far as detectives were aware, this spa was a place that people went to pay for sex, not for lawful massages.”
The appeal also addresses the secret recording of women customers who received massages, including while they were mostly undressed. The state insists that Kraft and his attorneys have invented a legal requirement that doesn’t exist: That the police can only lawfully film massages of men.
On the contrary, the state maintains, law enforcement officers were permitted to assume that women may have also received prostitution services while in the spa. “Law-enforcement officers,” the appeal stresses, “were not bound to adopt a conclusive presumption that only male clients procure illicit prostitution services during the ‘early stages’ of their surveillance operation—i.e. before the video evidence established a firm evidentiary basis for subjecting men and women to different surveillance regimes.”
Furthermore, the state argues that even if customers’ constitutional rights were violated, the videos of Kraft should not have been suppressed. The state pleads that the police were acting in good faith and that Florida law recognizes a good-faith exception for search warrants. The state also asserts that to the extent there ought to be suppression of videos, the only persons who should raise such a claim are customers who acted lawfully—not Kraft and other men who allegedly visited the spa for sexual services. To that point, the state maintains that Kraft lacks standing (a legitimate legal interest in a particular dispute) to argue the points he has raised. To hold otherwise, the state warns, would provide Kraft with an unearned “windfall.”
For Kraft, the most disturbing passage contained in the state’s appeal surfaces when prosecutors claim that Kraft is guilty of a felony under Florida Statute 796.07. Although this statute mainly contemplates solicitation as a misdemeanor, it does permit the charging of a third-degree felony for a second violation of the statute. Under Florida law, a conviction of a third-degree felony can lead to a prison sentence of up to five years. The state reads the statute to maintain that “any person who purchased prostitution services on multiple days, as Mr. Kraft did, committed a felony.”).
An alternative reading of the statute, however, would be that a “second violation” contemplates multiple prosecutions—that is, a conviction for a first set of solicitation charges and then a second case and conviction. That latter interpretation would not allow for Kraft to be charged with a felony.
Along those lines, Kraft’s attorneys dispute each and every one of the state’s legal arguments. They contend, as discussed more fully above, that the police engaged in creepy, voyeuristic and ultimately illegal film sessions of naked people. His attorneys also insist that the state has exaggerated the importance of the investigation to distract from a flawed and aggrandized assumption of human trafficking and because they happened to have caught a high-profile person in Kraft.
Next steps in the appeal
The appeal will play out over the course of 2020. According to court procedures, a panel of three judges will consider the appeal about two or three months following the filing of the last brief or response in the appeal. The appellate panel has the discretion to grant a request for an oral argument and schedule it (according to the court docket, the state on Dec. 23 requested an oral argument). In an oral argument, attorneys for the state and Kraft would face each other. Several weeks, or possibly months, later the appellate panel would issue an opinion.
Kraft is advantaged by the fact that Judge Hanser’s opinion was not only in his favor but was well-reasoned. However, an appellate court has wide discretion. It’s possible Judge Hanser’s suppression order will be reversed and vacated, which would effectively re-start the case.
The implied threat by the state that, should Judge Hanser’s suppression order be reversed, Kraft could be charged with a felony (based on the debatable interpretation of Florida Statute 796.07 discussed above) seems unlikely to happen. To elevate a charge without a change in the underlying facts or evidence would be a departure from ordinary practice.
A court might object, too. After all, if the state thought Kraft had committed a felony, why wasn’t he charged with a felony in the first place? Nothing substantial has changed since then and now, other than Kraft thus far defeating the state in court. Furthermore, the other men caught in the prostitution ring who were first-time offenders were only charged with misdemeanors. To charge Kraft with a felony for the same basic misdeed would raise questions about whether he is the target of prosecutorial abuse—perhaps because he is wealthy, famous, from a different part of the country and has refused to play ball with prosecutors. His attorneys, which include the high-profile legal team of Jack Goldberger, William Burck and Alex Spiro, would not be intimidated.
If Judge Hanser’s order is reversed, it’s far more likely that the misdemeanor prosecution would simply resume and that Kraft would eventually accept a plea deal in which he pays a fine, performs community service and attends an educational course. It is very unlikely Kraft that would want to go to trial, as it would center on intimate and embarrassing matters. It is also nearly implausible to believe that there are circumstances in which Kraft would be sentenced to jail for his alleged acts.
Roger Goodell is watching
NFL commissioner Roger Goodell and other league officials are surely monitoring developments in Florida. The league has not taken any action against Kraft, most likely because the litigation is unresolved. If Kraft wins the appeal and the case is dismissed, Goodell might not punish Kraft. Alternatively, Goodell might still impose a punishment based on Kraft’s admission to a lapse in judgment. A punishment in that scenario would probably be light, such as a fine and an expectation that Kraft donates to a charity related to victims of sexual exploitation.
If Kraft loses the appeal, the case will resume. It would most likely end in a plea deal where Kraft pays a court fine and performs community service. In that scenario, Goodell might be more inclined to suspend Kraft. Six years ago, Goodell suspended Indianapolis Colts owner Jim Irsay for six games and fined him $500,000 after Irsay pleaded guilty to a misdemeanor charge for operating a vehicle while under the influence.
A suspension of an owner is, obviously, more of a symbolic and shaming gesture than a transaction that impacts the team. Still, Kraft, who was a passionate Patriots fan long before he became their owner and who is often shown on TV broadcasts of Patriots games, would be unable to attend games. A suspension from his team would certainly disappoint and embarrass him.
The resolution of the controversy could impact Kraft’s possible admission into the Pro Football Hall of Fame. Kraft was not selected as a finalist for the 2020 class despite, as NBC Sports’ Tom Curran detailed, a change in eligibility rules that made Kraft’s admission more possible. Between football success—the Patriots have been the most dominant team in the 21st century, during which they have won six Super Bowls—and Kraft’s contributions to the league as chairman of key committees, he has a good chance to make the Hall. However, his legal troubles in Florida, as well as controversies involving his team (particularly Spygate), could stand in the way.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.
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