Robert Kraft's game plan for getting solicitation charges against him dismissed was revealed in a court filing this week: suppress the video footage that Kraft's lawyers claim was illegally secured.
If the court agrees the warrant was obtained illegally – or that police misled the judge –the New England Patriots owner could be spared.
USA TODAY Sports obtained the sneak-and-peek search warrant application a judge approved to surveil the Jupiter, Florida, massage parlor that Kraft visited. The application listed “evidence of prostitution” as the primary need to place cameras inside the Orchids of Asia Day Spa. The detective did note conditions inside the spa were "consistent with individuals living inside" – something Kraft's legal team wrote in a filing "seemed to suggest" human trafficking was taking place in order to bolster the chance such a warrant would be approved.
"Those ‘facts’ were false, and any suggestion of human trafficking being suspected was unfounded and irresponsible," Jack Goldberger, Kraft’s Florida-based attorney, wrote in Thursday's filing.
Goldberger’s eight-page motion to suppress two vital pieces of evidence – the video footage and the car stop during which Kraft initially was identified by police – provided a look into Kraft’s defense strategy.
Kraft pleaded not guilty to two misdemeanor solicitation charges and asked for a jury trial. He also issued an apology Saturday that read in part: “I know I have hurt and disappointed my family, my close friends, my co-workers, our fans and many others who rightfully hold me to a higher standard.
The sneak-and-peek warrant, officially known as a delayed notice warrant, was approved by Palm Beach County Circuit Judge Howard Coates on Jan. 15 – and spanned five days from the installation of the recording equipment. According to the charging documents, Kraft visited the spa twice during that span and footage captured two women on Jan. 19 and one woman on Jan. 20 performing sexual acts on Kraft.
The second visit came hours before the kickoff of the AFC Championship game between the Patriots and Kansas City Chiefs.
Coates approved video surveillance and recording, but not audio. He also mandated “there will be no cameras installed in areas expected to be non-criminal in nature.”
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Thursday’s filing by Kraft's legal team again chipped away at the human trafficking narrative law enforcement officials and prosecutors vociferously conveyed when the first of more than 300 people – including Kraft – were charged.
Martin County Sheriff Will Snyder told USA TODAY Sports this week that the spas had “all trappings of human trafficking,” even though no such charges have been brought in either Martin or neighboring Palm Beach County, where Jupiter is located.
And the mention in the Jupiter affidavit for the search warrant of human trafficking was related to “information received from Detectives with the Martin County Sheriff’s Office.”
Messages left Friday with the Palm Beach County State Attorney's office by USA TODAY Sports were not returned.
The affidavit for the search warrant for the Orchids of Asia Day Spa in Jupiter included information that was provided to police by Florida Department of Health specialist Karen Herzog. Herzog inspected several of the spas implicated and visited the Orchids of Asia Day Spa at the request of Jupiter police.
“Herzog advised it appeared as though the female employees were living there as there were two rooms with beds, including sheets and pillows,” a Jupiter police detective wrote in the application for the search warrant. “Next to the beds she located dressers which housed several personal items including medicines and clothing for the females. Inside the kitchen of the business, Herzog located a refrigerator filled with food and condiments, consistent with individuals living inside.”
Goldberger argued the warrant that allowed police to surreptitiously place video cameras inside the massage parlor violated the Fourth Amendment and Florida’s privacy laws.
Robert Kraft attends the AFC championship game at Arrowhead Stadium. (Photo: Mark Rebilas, USA TODAY Sports)
'This isn't some top-secret NSA stuff'
The Patriots owner, however, could run up against one issue when it comes to sneak-and-peek warrants: the Patriot Act.
“There’s a huge difference between a search warrant and these delayed-notice searches,” Paul Petruzzi, an attorney who represents one of the Orchids of Asia Day Spa workers charged, told USA TODAY Sports. “This isn’t some top-secret NSA stuff going on here. The Patriot Act was supposed to be about stopping terrorism, not rub and tugs.”
Even if this was a prostitution case, such warrants still are allowed under the Patriot Act that became federal law after 9/11, Pertuzzi said. Law enforcement, however, needs to show such an invasive tactic is necessary, meaning other techniques failed to expose a criminal enterprise.
“At the time officers secured this warrant, they already had ample evidence that solicitation might be occurring at the spa … and an array of routine, reliable means for collecting more,” Goldberger wrote in the filing. “By no stretch of the imagination did law enforcement need to resort to secret, indiscriminate, continuous videotaping of private massage parlors in order to build a solicitation case around low-level, consensual sex acts.”
Even if the judge overseeing Kraft’s case agrees errors were made in obtaining or carrying out the warrant that allowed police to surreptitiously place video cameras inside the massage parlor, that doesn’t necessarily mean Kraft’s two charges will be tossed or a jury won't convict if it gets to that stage.
“Detectives could testify in court as to what they observed,” said former U.S. Attorney David S. Weinstein “The case could still go forward against Kraft and the others. However, by filing this motion and litigating the issues, it might result in the state attorney softening the terms of the pretrial diversion offer and removing the admission of guilt.”
Kraft rejected the first pretrial diversion program offer by prosecutors earlier this month.The deal would have spared Kraft jail time, but he would have had to admit guilt – something that is atypical in diversion cases. A hearing in the case is scheduled for April 9.
Defense: Video surveillance not necessary
Richard Kibbey, whose firm is defending 24 clients between Martin and Palm Beach counties linked to the alleged prostitution ring, told USA TODAY Sports that it’s exactly that kind of policing that could have been done without the use of recording people – including those who actually got massages with no sexual contact – in the parlors.
“In Martin County, they stopped customers leaving the spa and asked them what went on in the massage parlor and if any sex acts occurred,” Kibbey said. “They confirmed they paid extra for (the sex acts) to happen. There was no mention of people who may have told police no sex acts happened. They are not giving the court a full picture of what happened.”
The Jupiter police warrant affidavit listed four unidentified men who told detectives they had sex acts performed on them at the Orchids of Asia Day Spa. The affidavit also stated “a presumptive test of the napkins recovered for the presence of seminal fluid” after a search of the spa’s garbage.
Pertuzzi said that should have been enough to conclude a prostitution operation was in progress at the spa, negating the need for video surveillance. He also said police installed a GPS tracker on his client’s car with the court’s approval.
“They didn’t fail in other techniques they tried,” Pertuzzi said. “They didn’t fail to obtain evidence from the trash they pulled. They stopped people on the side of the road and got evidence. They got everything they needed.”
Follow A.J. Perez on Twitter @byajperez
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