The judge presiding over the solicitation charges pending against Patriots owner Robert Kraft has yet to rule on a motion to suppress the surveillance video generated during his two visits to the Orchids of Asia day spa. A judge presiding over a related case has now ruled that these so-called “sneak-and-peek” videos cannot be used in court.
The surveillance occurred in facilities in Martin County and Palm Beach County. Kraft’s case is pending in Palm Beach County; in Martin County, Judge Kathleen Roberts has decided that the execution of the warrants authorizing surveillance invalidates the videos.
In the six-page ruling, Judge Roberts finds that no effort was made to avoid monitoring or recording innocent activity. “[T]he innocent client was treated the same by law enforcement as the criminal element they sought to capture,” Judge Roberts wrote.
Judge Roberts also concluded that no effort was made to end monitoring and recording once it was obvious that no illegal activity was occurring. “At the very least,” she wrote, “it would have required that when it was determined that no illegal activity was happening in the massage room, the monitoring or recording was turned off when the client began to dress after the massage was concluded. At no time was any effort made to stop the monitoring or recording at any point to protect the innocent person who happened to enter an area covered by a camera.”
So why would a failure to protect the innocent benefit the potentially guilty? Because, as Judge Roberts writes, video surveillance constitutes an “extraordinary method of searching for evidence of criminal activity,” requiring “high levels of responsibility” to be met in order “to avoid the intrusion on the activities of the innocent.”
When law enforcement fails to meet this standard, “[t]here is no other remedy but to suppress the evidence gathered.”
This ruling presumably will apply to all Martin County cases. The question for Kraft (and the rest of the Palm Beach County defendants) will be whether that same reasoning will be applied by judges in the neighboring jurisdiction. Ultimately, the question becomes whether the Florida appeals courts agree that the manner in which the search warrants were executed requires all videos generated by the searches to be kept out of court.
In Kraft’s case, the next hearing has been set for May 21. and Kraft reportedly is expected to attend. If the judge concludes that the video should be excluded, there quite possibly won’t be a May 21 hearing.