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  • Robert Kraft’s legal team is now arguing that police illegally recorded inside the Florida day spa where the Patriots’ owner was caught engaging in sexual acts, and that the video should be excluded from the case. Where could the case go from here?
By Michael McCann
March 29, 2019

Robert Kraft may have publicly apologized for partaking in two sexual incidents at the Orchids of Asia Day Spa in Jupiter, Fla., but attorneys for the 77-year-old billionaire insist those incidents were not criminal acts.

On Thursday, Kraft’s attorneys submitted to Judge Leonard Hanser of the Palm Beach County Court a motion to suppress. If granted, the motion would exclude key evidence from the case against the New England Patriots owner.

Kraft’s high-profile legal team—led by attorneys Jack Goldberger, William Burck and Alex Spiro—contend that videos of Kraft engaging in sexual activity with massage therapists on Jan. 19 and 20 were obtained through an unlawful sneak-and-peek search warrant. Attorneys contend that the warrant was “used to spy on Mr. Kraft” while he was unclothed in a private room of a licensed spa. They also assert that any evidence obtained through an accompanying traffic stop must be suppressed.

The case against Kraft would collapse in the absence of admissible evidence. Whether that happens will require judicial analysis of several key factors that underscore the uncomfortable nexus between privacy rights and surveillance powers.

Kraft’s legal team: Illegal spying and defective police work “infect” the case against him

In depicting law enforcement’s surveillance tactics as resembling an Orwellian “police state”, Kraft’s attorneys contend the police should have utilized far more benign and less invasive methods of investigating solicitation. Solicitation is a low-level misdemeanor under Florida law and arguably does not justify a multi-county, clandestine investigation.

Goldberger, Burck and Spiro maintain the police voyeuristically resorted to “drastic, invasive [and] indiscriminate” methods to target Kraft and other men. One such method was “taking continuous video recordings of private massages in which customers would be stripping naked as a matter of course.” Kraft, according to this perspective, had a reasonable expectation of privacy that the police breached. This is particularly the case, the lawyers insist, since attention-grabbing claims of “human sex trafficking” at the spas have proven unfounded.

The viability of Kraft’s motion to suppress will hinge on how the court reviews the legal ramifications of so-called “sneak-and-peek” searches. Such searches rely on covert surveillance methods, such as law enforcement creating a ruse for employees to leave an office building. Then undercover police officers, posing as maintenance workers or as other service professionals, install hidden cameras in the office. With the spas in Florida, officers posed as repairmen and then affixed multiple cameras to capture payment of services and sexual acts.

Sneak-and-peek searches disregard the typical legal requirement that the target of the search warrant be given advance notice (such as the “knock-notice” rule, which means officers must knock on a person’s door before entering). With a sneak-and-peek warrant, the notice is “delayed” until after the search is conducted.

Sneak-and-peek warrants are authorized by several laws, including the 2001 USA Patriot Act. Passed in the aftermath of the September 11, 2011 terrorist attacks, the Patriot Act expanded the power of law enforcement to engage in surveillance and recording of illegal activity. In some contexts, the Patriot Act makes it very difficult for a person to argue that his or her Fourth Amendment right to a reasonable search was violated.

Kraft’s attorneys insist that the police prematurely and unnecessarily turned to a sneak-and-peek search warrant to investigate a low-level crime. The police, Kraft’s attorneys charge, “did no undercover work”, declined to seek a subpoena and refused any attempts to speak with the spa’s employees or former employees. As viewed from Kraft’s perspective of the facts, the police lazily disregarded a duty to gather intelligence and perversely relied instead on invasive videotaping.

Kraft’s attorneys also attack the failure of the search warrant to offer instructions on when to start and stop the recording. Interestingly, the court-approved search warrants for the men who visited the spas do not explicitly mention recording within the ambit of the authorized searches. This is particularly striking since in law enforcement’s affidavits and application requests for those warrants, officers expressly sought “search warrants authorizing the monitoring and recording of visual, non-audio conduct.” The fact that law enforcement referred to both “monitoring” and “recording” signals the police regarded these two words as referring to different activities. If monitoring and recording were synonymous then they would be redundant. Police also rely on a case called U.S. v. Mesa-Rincon, which involved a warrant for the interception and recording of nonverbal conduct in an office building. Again, recording appears to be a different function. In addition, the requests make clear that “all monitoring of video surveillance shall be conducted in such a way as to minimize the visual surveillance and disclosure of visual surveillance intercepted.” The language of this safeguard draws a distinction between surveillance and the intercepting of the surveillance, with “intercepting” taking on the function of a recording.

Kraft’s attorneys opine that the police completely bungled their video work. While the police caught sexual acts on video, they also recorded “spa customers who engaged in no sexual activity whatsoever.” The videotaping, according to the attorneys, was “indiscriminate and continuous” and, as Kraft tells it, captured everything. Further, Kraft’s legal team cites Florida precedent indicating that audio wiretapping (a less invasive form of search than video surveillance) is reserved for major crimes, like murder and kidnapping. Not surprisingly, this category of crimes does not include solicitation. Moreover, according to Kraft, the police neglected a promise to deliver copies of the videos to the spa within 10 days, which suggests that the police didn’t adhere to its own policies. Lastly, Kraft’s attorneys reject the Jan. 19 traffic stop of a blue Bentley in which Kraft was a passenger as a stop that lacked reasonable suspicion the driver had committed a traffic offense (details about the stop remain unknown).

Likely response by prosecutors: Kraft’s lawyers are misconstruing the facts and law

Every legal controversy has at least two sides. To be sure, law enforcement and prosecutors will attempt to rebut Kraft’s claims as untrue, exaggerative or lacking context.

In response to Kraft’s arguments, expect prosecutors to highlight law enforcement’s affidavits and application requests for the search warrants used to investigate hundreds of men who visited targeted spas and engaged in illegal solicitation. These materials were obtained by Merris Badcock and Meghan McRoberts of WPTV. They show that, contrary to insinuations by Kraft’s legal team, law enforcement did not immediately jump to recording men while they were naked in private rooms.

Indeed, officers conducted various types of pre-recording human surveillance of the men who had entered the targeted spas. While engaged in this evidence gathering, the officers observed men engage in multiple types of “suspicious behavior.” For instance, during a seven-week observation period outside of one spa in the summer of 2018, an officer “observed only white males that were middle to elderly in age” enter the establishment. Many of these purported “customers” were observed “looking around the parking lot to see if anyone was watching them while walking up to the spa.” They also parked far away from the spa, even though open parking sports were available right in front. The officers further noticed that many of the men who entered and left a targeted spa appeared “overly concerned/paranoid,” which, according to law enforcement, is consistent with the behavior of persons who partake in illegal acts. Also, a number of customers exited the spa in such short timespans that they could not have received massages.

Other non-video surveillance methods included searches of dumpsters behind the spas. In one such search, officers found a spa bag that had contained napkins and tissues with a “semi liquid substance within them.” Field tests identified the substance as semen residue. Officers also resorted to intake of incriminating admissions by men who had entered a targeted spa for purposes of soliciting sex. For instance, an officer pulled over a “John” for driving 37 miles per hour in a 25 mile per hour zone. The man then told the officer that he had received a “hand job” at one of the spas and paid $40 for it.

Prosecutors will likely also challenge Kraft’s attorneys on the essentiality of human trafficking for purposes of the warrant’s legality. It is true that no one connected to the spas has been charged with human trafficking. The only felony-level charges have been brought against the spa’s owners for running an illegal prostitution business. In fact, Martin County Sheriff William Snyder recently acknowledged that it does not appear that human trafficking at the spas can be proven.

On the other hand, law enforcement sought search warrants to conduct video surveillance for multiple reasons. One was the belief that widespread prostitution was occurring in the spas, and that such an activity could be tied to money laundering. Especially given that felony charges were brought against the spa owners and that numerous men were caught engaged in solicitation, prosecutors could argue that the warrants proved justifiable. Likewise benefitting prosecutors is that courts usually approve sneak-and-peek warrants pursuant to the expansive authority of the Patriot Act.

Further, prosecutors will contend that Kraft appears to be guilty of solicitation. Not only has he publicly expressed contrition, but police officer narratives of the two videos of Kraft appear to depict him as paying for sex. To the extent the court is swayed by the culpability of the party petitioning for suppression of evidence, Kraft is probably not the ideal person to claim a right to privacy.

What Kraft’s legal standing and reputation would gain if he wins the motion to suppress

If Kraft’s legal team convinces the court to suppress the videos of the sexual incidents, odds are State of Florida v. Robert Kraft would be dismissed. Although it’s possible that prosecutors could attempt to rely on alternative forms of evidence, such as testimony by the women from whom Kraft allegedly received sexual services, video is the most conclusive evidence that Kraft was in the spa and that he paid for sexual acts. Take away the video and the odds of a jury finding Kraft guilty beyond a reasonable doubt would plummet.

If the case is dismissed, Kraft would avoid the potential punishments that would accompany being found guilty or reaching a plea deal. A conviction under Florida statute 796.07 calls for a jail sentence of up to one year. While Kraft would likely not be sentenced to jail given his age and lack of criminal record, he would face other legal penalties in any conviction or plea deal. They include a required screening of sexually transmitted diseases, partaking in many hours of community service and completion of an education course about prostitution. As explained in The MMQB, Kraft has already rejected one plea deal offer.

The suppression of the video would also serve as revenge for Kraft against the Jupiter Police and Palm Beach County prosecutors. Kraft is likely furious that while law enforcement has not explicitly accused him of involvement in human sex trafficking, police and prosecutors have repeatedly mentioned him in the context of a trafficking investigation.

On one hand, Kraft can’t credibly claim that he was defamed by the police. Statements made in the course of legal proceedings are not subject to defamation claims. Also, while Kraft’s name surfaced in a press conference about human sex trafficking, there was no specific accusation that Kraft partook in trafficking.

On the other hand, Kraft could reasonably argue he was a victim of “false light.” In law, false light refers to a comment that might not be literally false but is presented in such a grossly distorting manner that a reasonable person would regard the statement as highly offensive. Here, it was literally true that Kraft was one man caught in a surveillance operation of spas that law enforcement had suspected of human sex trafficking. However, Kraft had nothing to do with trafficking (and, as it has turned out, it doesn’t appear there was any trafficking). The police mentioning him in such a damaging context was thus likely “true” in a literal sense but was arguably so out-of-context that it damaged his name. Kraft would love to see the case dismissed, which would embarrass law enforcement and prosecutors and, with the star defendant off the board, potentially undermine the entire investigation.

Suppression of the videos could help keep the media’s hands off the videos

In many ways, Kraft is fighting three legal battles at the same time. The first is the criminal case, the second is whether the videos go public and the third is whether, and how, NFL commissioner Roger Goodell will punish him.

The first battle is explained above and the third is discussed below. Turning to the second battle—the videos—Kraft’s legal team seeks a protective order to block any media company from access to the videos and other evidence. The order would make it illegal for those companies to copy, reproduce or permit online access to the videos.

Kraft’s attorneys attempt to justify a protective order primarily on account of the videos being obtained through an (allegedly) unconstitutional sneak-and-peek search warrant. The attorneys argue that the press, “which seeks to intervene in this action for the sole purpose of obtaining access to the illegally obtained video evidence, has no legitimate right to possess such material.” They also contend that once the public sees the videos, Kraft’s Sixth Amendment right to a fair trial would be lost. The Sixth Amendment argument is unlikely to prevail given that judges normally find the voir dire process—where prospective jurors are questioned by each side’s attorneys for potential biases—sufficient for purposes of identifying fair-minded jurors. This is true in celebrity cases, too.

A group of media companies, including the Associated Press, ESPN and The New York Times, disagree with Kraft on the merits of a protective order. They have intervened in the litigation and filed a motion in opposition of the order.

The media companies insist that both they and the public have a Constitutional right to monitor legal proceedings of men connected to the spas. The companies stress that these proceedings are undoubtedly newsworthy. They highlight the public’s interest in the topic and stress that media has closely followed criminal investigations into human sex trafficking and prostitution at spas.

In addition, the media companies contend that law enforcement has discretion under Florida law to release active criminal investigation/intelligence information—and that Kraft has no legal authority to take away that discretion, even if he is fearful of the videos going public. Similarly, Florida law recognizes that government records are presumptively open. Florida law also does not provide a right of privacy in public records simply because a record might cause someone embarrassment. Lastly, under Florida law, once evidence is shared with the defendants, its protective quality is diminished and normally cannot be withheld from the public.

If Kraft’s attorneys succeed at suppressing the videos, they would probably have a more persuasive privacy argument that the videos be sealed and kept away from the media. It would be a peculiar outcome if videos that violated Kraft’s Fourth Amendment right could then be shared with the public and thereby cause him severe embarrassment and reputational harm. That said, Florida law and practice tends to favor disclosure of non-protected records.

It’s possible the videos could be released but in edited form, such as blurring of any sexual acts and unclothed private parts of the body. It’s also possible that the defendant’s face could be blurred or, alternatively, a concealing dot or circle could be affixed on the face. These measures would diminish the impact of the videos, though Kraft—given his fame and recognizability—would likely still be identifiable.

If Kraft ultimately negotiates a plea deal with prosecutors (which, despite the legal drama narrated above, remains the most likely conclusion), the videos would likely emerge as a term of the settlement. Kraft could demand that the government affirmatively assents to sealing the videos and pledges to make good faith efforts to resist attempts by the media to unseal the videos.

There is also a separate track that the videos could be released: they could be leaked. It’s possible the videos could have a seven-figure value. It’s possible that many people within relevant government agencies have or could have access to physical or digital copies of the videos. All it takes is one leaker who tries to illegally “cash in.” Once such a high-profile video is uploaded on the Internet, it’s game over—there is no taking it back.

Judgment by Goodell isn’t contingent on the outcome of legal proceedings—and why requiring that Kraft donate millions may be the best option for the NFL

In a “best-case” scenario for Kraft, the criminal case against him would be dismissed and the videos would be destroyed or permanently sealed.

Even then, Kraft could still be punished by Goodell.                    

Under the league’s personal conduct policy, Kraft can be punished for any “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” As an alternative source of authority, Goodell can rely on Article VII of the league constitution. This clause permits both suspensions of owners and fines of up to $500,000 for “conduct detrimental to the welfare of the league.”

Goodell can punish any owner, coach or player without a finding that the person broke a law. The relevant test for Goodell is whether the person caused the league reputational harm, including with sponsors, and damaged the NFL’s brand.

Goodell could reason that while Kraft is not guilty of a crime, he still engaged in conduct that caused him and the NFL embarrassment. Also, as a subject area, prostitution is associated with violence against women and degradation of women.

Consider Kraft’s own words. In a statement released last Saturday, Kraft says he is “truly sorry” and that "the last thing I would ever want to do is disrespect another human being.” If Kraft believed he had done nothing wrong morally, he presumably would not have issued such a statement. Further, even if Kraft’s sexual acts with the massage therapists were consensual and even if Kraft had nothing to do with sex trafficking, solicitation is an illegal act in 49 states (Nevada licenses brothels in limited areas). If the case against Kraft is dismissed on Fourth Amendment grounds, he would have been exonerated due to a defective legal process, not because he did not engage in solicitation.

The question of punishment will be entirely up to Goodell. It is difficult to predict how he would punish Kraft. That said, Goodell could reason that a non-criminal, but nonetheless embarrassing and insensitive act warrants a punishment. One potential punishment would be to fine Kraft and/or get Kraft to donate millions of dollars to a charity that combats prostitution. A donation would be designed to maximize the social good. While some would question the impact of a financial penalty on Kraft, who is reportedly worth $6.6 billion, a transfer of money to a charitable cause would actually be useful: it would help a group that engages in work designed to prevent future victims.                                                                                               

A required owner’s donation was a method of punishment effectively used by the NBA last year in regard to Dallas Mavericks workplace misconduct. Last September, Mark Cuban and the NBA agreed he would donate $10 million to organizations that, among other things, combat domestic violence. To be sure, a $10 million expense to Cuban, who is reportedly worth $4.1 billion, is a dollar amount that might not “punish” him in a practical sense. Yet it led to financing important social causes related to the underlying offenses by Mavericks executives.

If Goodell instead suspends Kraft, Kraft would surely be stigmatized—and that, in turn, might deter other owners as well as coaches and players from engaging in similar misconduct—but an owner suspension is a largely symbolic gesture. An owner doesn’t play in games or run the team. When Goodell suspended Indianapolis Colts owner Jim Irsay six games in 2014 after Irsay had pleaded guilty to a misdemeanor charge for operating a vehicle while under the influence, the Colts did not appear impacted at all. Goodell also fined Irsay $500,000, though if Irsay had instead been urged or de facto required to donate to a related charity—such as one that combats drinking and driving—the outcome would have arguably been more useful.

The MMQB will keep you updated on developments in the Kraft story.

Question or comment? Email us at talkback@themmqb.com.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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