South Florida Sun-Sentinel Palm Beach (Sunday)
Lawyers dispute ‘sneak and peek’ tactic
Cops took hidden cameras into massage parlors years before Robert Kraft’s prostitution sting
Billionaire Robert Kraft’s lawyers claim police clearly violated the law when they secretly planted cameras inside a massage parlor. But it wasn’t the first time cops have used the controversial tactic.
In South Florida, the police have used court-approved warrants to spy on and record private rubdowns for prostitution stings. Officers in Boca Raton used secret cameras for similar massage-parlor crackdowns at least twice — in 2007 and 2014, charging dozens of johns and madams, records show.
State and federal laws prevent law enforcement agencies from using secret cameras for investigations that are specifically limited to prostitution. This has set the stage for Kraft’s lawyers, who’ve turned his criminal charges into a test case for whether cops can legally carry out such “sneak and peek” operations.
The stealthy surveillance has raised the issue of privacy against a national backdrop of people worrying about high-tech government snooping.
“It is relatively unusual to be physically intruding covertly into a home or a business to set up a camera,” said Jonathan WitmerRich, a law professor at Cleveland State University who has done extensive research on the warrants. “It certainly happens, it’s happened for a long time, but I think that’s fairly unusual.”
In the Boca Raton cases, no celebrities were involved and hardly anyone raised a fuss over the covert filming. And those are just the times when “sneak and peek warrants” were revealed through news accounts of massage parlor busts.
Yet now there’s a furor over the
misdemeanor charges faced by Kraft, the 77-year-old New England Patriots owner over his visits in January to the Orchids of Asia Spa in Jupiter.
Battling secret cameras
Many of the legal questions surrounding the Kraft case remain unanswered: Did the Jupiter police go too far with their sneak-and-peek tactic to go after prostitution?
Or was their warrant legal because police also were investigating the possibility of human trafficking, with women brought to the U.S. from China and forced to perform sex acts?
A review by the South Florida Sun Sentinel reveals some key findings:
The use of delayed-notice or sneak-and-peek warrants has increased over the past decade in South Florida, statistics show. But it’s still used in a small percentage for sex cases compared with drug busts, while numbers of massage parlor-specific warrants are unknown. Overall, requests for seek-and-peek warrants are not something judges see every day or even every week.
The Boca Raton massage parlor cases with the sneak-and-peek warrants were typically resolved through agreements between prosecutors and those who were charged, records show. With some exceptions, prosecutors dropped solicitation counts after defendants completed minimal punishments such as community service and paid small fines.
Only one person charged in the Boca cases went as far as to file a challenge over the sneak-and-peek warrant, raising objections similar to Kraft’ s. Prosecutors dropped the charge before there ever was a hearing.
None of the people charged in the Boca cases ever tried to ask the court to seal the videos, making the tapes available through public records requests. That’s completely different from the vigorous fight by Kraft’s legal team to prevent the videos from ever being obtained by the news media. Kraft ’s lawyers labeled them “pornography.”
Massage-parlor stings are set up every few years in South Florida, usually resulting in charges against people who work there or go there for sexual services. In Hallandale, Hollywood and other cities, cops even have gotten naked, worn wires, and used other undercover techniques to target criminal activity.
Stepping ‘over the line’?
It’s the use of secret cameras that raises the most red flags for criminal defense lawyers.
Several attorneys who defended men caught in the 2007 and 2014 Boca Raton massage parlor stings said they would have liked to challenge the warrants back then. But their clients advised the lawyers against it.
“I would love to litigate these things, because I think some of the things that law enforcement did in these cases step over the line,” said Michael Salnick, who got a prostitution misdemeanor dismissed against former Coconut Creek Police Officer James Yacobellis.
Charged in the 2014 case, Yacobellis avoided prosecution by quickly agreeing to community service and other minor requirements. But he also lost his job over the episode, with the video of his visit to O Asian Wellness Spa and Massage released to the public.
Salnick’s firm now represents Lei Wang, the manager of the massage parlor at the center of the Kraft case, concerning a civil lawsuit she faces in Martin County.
Salnick says he’s thrilled to see Kraft not backing down.
“He’s got some very energetic and proactive lawyers and they are going to take this thing to the mat and make sure the government did what they’re supposed to do,” Salnick said. “And they may not have. The government may have overstepped their bounds here, and I’m very, very concerned about that.”
The case at the O Asian parlor ended in 2015 with the successful prosecution of the owner, Xiaoqin Li, of Sunny Isles Beach in Miami-Dade County. Li and two employees were caught on camera accepting payments and providing massages that ended with sex acts, police said.
Rather than challenge the evidence or risk going to trial, Li pleaded guilty to money laundering and two prostitution charges. She surrendered $190,000 in seized funds, and was sentenced to 10 years of probation, including the first nine months to be served in jail.
In the earlier case from 2007, Christina Kim, the owner of the Essence Spa, was not arrested until eight years later, when she was picked up on an old warrant.
But her attorney, Herbert Cohen, of Fort Lauderdale, got prosecutors to drop charges of money laundering, living off the proceeds of prostitution, and permitting an employee to practice massage without a license.
The defense argued that the time to pursue the charges had run out, and prosecutors agreed. So the New York woman caught a break.
Cohen, a former Broward prosecutor, said his client would have been vindicated anyway, because she was an “absentee owner” without any knowledge of the sexual acts in the business.
He bristled at the idea that human trafficking was involved at the Essence Spa, so there was no reason for the secret cameras there. He said the johns charged in the prostitution cases “had every right back then to challenge the sufficiency of the warrant.”
“Is the seriousness of the crime so extensive — does it damage the community that much — that you can forfeit peoples’ right to privacy?” Cohen asked.
Mark Economou, Boca Raton police spokesman, did not respond to a question about whether human trafficking was a factor in the case.
“Our first obligation is to protect people and make sure they are not being victimized,” he said in a statement. “This is achieved by thoroughly investigating suspected criminal activity in our city.”
Economou also said that his agency doesn’t weigh success or failure based on what happens after police make arrests.
“There are many cases that are dropped by the State Attorney’s Office but our investigations are successful when charges are filed,” he noted.
Rise of government spying
Sneak-and-peek warrants, which became more prevalent in the war on terror after the 9/ 11 attacks, allow authorities to access private property so the government can secretly do a search without notifying people under investigation.
Federal statistics offer a glimpse into the prevalence of the warrants.
From 2007 to 2017, the number of sneak-and-peek warrants granted by federal judges rose from 404 to 14,221, including 175 in South Florida. These include just 3% for sex cases, according to the Administrative Office of the United States Courts.
But the numbers don’t account for warrants approved by state court judges and it doesn’t clarify when the cops used cameras.
“It covers a lot of things that are not a physical intrusion into a home or a business,” said Professor Witmer-Rich from the Cleveland-Marshall College of Law, citing cases where cops put tracking device cars or collected private emails. “I don’t think it is super common but we can’t really tell how frequently it’s happening.”
Retired Palm Beach County Circuit Judge Lucy Chernow Brown said she encountered few requests for sneak-and-peek warrants, and never one for massage parlors, during her 24 years on the bench. She recalls approving the warrants for investigations such as stopping a drug enterprise out of a small business.
So while the warrants are not particularly common, they are “not shockingly unusual” either, said Brown, who retired in early 2015.
Lack of human trafficking
Kraft’s lawyers are not contending the warrants are always illegal, just for this specific case. They argue there is no evidence of human trafficking, a serious offense that could justify such spying in a rare circumstance.
“Here, the low-level prostitution crimes being investigated by the Jupiter Police Department were, most assuredly, not among ‘ the most serious offenses’ under Florida law,” wrote attorneys William Burck, Alex Spiro and Jack Goldberger.
In a response filed April 8, Palm Beach County Assistant State Attorney Judith Arco argued the sneak-and-peek warrant was legal for the investigation and the video evidence should be used in his trial.
She noted the police were exploring “possible human trafficking” based on a tip from the Martin County Sheriff’s Office, and website reviews that the massage parlor provided “sexual services.”
Prosecutors recently told a judge human trafficking is not part of the case. But the debate will be the subject of a daylong hearing April 26 before Judge Leonard Hanser.
The Jupiter police detective who requested the warrant indicated that the focus was on prostitution, while citing a health department inspection that found evidence of women living at the business and performing sexual acts.
“A ‘sneak and peek’ warrant is the best, and only way law enforcement can conclusively say prostitution is occurring inside the business,” the detective wrote.
After a judge signed the warrant, the cops then used what they called a tactical ruse — it was a suspicious package warning — to clear out the business and put the cameras in the lobby and private massage rooms.
A case of government overreach?
Kraft’ s defenders slammed it as a National Security Agency-style surveillance campaign.
They contend the cops “peddled these falsehoods” about trafficking to mislead the judge into allowing the cameras.
“I don’t think it’s a frivolous argument at all by Kraft and his attorneys that if they ultimately didn’t find any evidence of the more serious offense, did they even have probable cause for the warrant?” said Witmer-Rich, the law professor.
Only one of the two dozen or so men charged in both Boca Raton cases ever filed a motion to question the legality of the warrant.
Attorney Jeffrey S. Weiner filed a challenge on behalf of his then 68-year-old client from the 2007 Boca sting that includes most of the same arguments being made today by Kraft’s defense.
In his motion, Weiner noted, “As a result of society’s reasonable and legitimate expectation of privacy when entering a business for the purpose of receiving a massage, the Fourth Amendment protects the Defendant from covert electronic video surveillance.”
According to the same pleading, the cops applied for the sneak-and-peek warrant to investigate the felony crime of “deriving support from the proceeds of prostitution” — with no direct reference to human trafficking.
Before the challenge was ever set for a hearing, prosecutors dropped the charge. Weiner, who has practiced law in South Florida for four-plus decades, said he assumed that the prosecution had no interest in a protracted fight.
“If we won this motion, that would have put these warrants to a grinding halt,” he said. “It was much easier to drop my client’s case.”
Having watched the Kraft proceedings from afar, Weiner is cheering on the Super Bowl winner’s fight against the sneak-and-peek warrants.
“It’s just not right, it’s offensive what the police did,” Weiner said. “I think they are going to have a rough time coming up with justification for it.”