Loyola University Chicago School of Law, LLM 2021
The criminal case against the NFL New England Patriots’ franchise owner, Robert Kraft, has taken an astounding turn of events as the Florida Court of Appeals handed down its ruling on Kraft’s privacy objections against law enforcement’s surveillance video evidence showing the billionaire soliciting prostitution at a local spa. Kraft filed a motion to suppress the evidence arguing that Florida law enforcement’s non-consensual and surreptitious recording of non-audio video surveillance of the premises of a private business, that is open to the public, runs afoul of Kraft’s, and others’, Fourth Amendment right to be free from unreasonable government searches. The ruling of the Appeals Court not only affirmed a similar lower court ruling by the Palm Beach County trial court, favoring Kraft, but it served up an interesting compliance lesson on the privacy protections required of law enforcement during their surreptitious video surveillance operations.
Preliminary issues – standing and the reasonable expectation of privacy
Prosecutors argued that Kraft doesn’t have the prerequisite “standing” to challenge the surveillance searches because the spa was open to the public and Kraft was merely a short term visitor (i.e. two visits for less than two hours) engaging solely in a commercial transaction, particularly an illegal one (i.e. solicitation of prostitution), and had no previous connection or relationship with the spa owner, therefore Kraft could not have had the reasonable expectation of privacy needed to now make the objection. And further, Kraft, as the criminal defendant, should be barred from asserting the privacy rights of third parties that had their innocent conduct recorded. The Appeals Court held that not only did Kraft have a reasonable expectation of privacy while being disrobed in a private room with a masseuse, but also that Kraft’s engagement in illegal acts did not eviscerate his privacy interests. And lastly, it held that public policy and tradition favors criminal defendants vindicating the privacy rights of innocent third parties because the third parties generally don’t have the wherewithal to file costly private lawsuits against law enforcement.
Federal judicially interpreted privacy protections do apply
After the Appeals Court discussed that Kraft, and the innocent spa patrons, were owed privacy protections by law enforcement, the Appeals Court went on to discuss, in general terms, what those protections should have been. Prosecutors argued that Florida state law is silent on the requirement to “minimize surveillance recording of activities not related to the crimes under investigation,” and the plain language of the Fourth Amendment only expressly states the probable cause and particularity requirements for a search warrant, and therefore the lower trial court erred in ruling that law enforcement should have applied judicially created minimization requirements mandated under federal Fourth Amendment search case law. The Appeals Court’s response now puts skeptical local law enforcement agencies on notice that even while state law is absolutely silent on the minimization requirement, federal jurisprudence interpreting implied constitutional standards do, in fact, still apply to state law enforcement operations.
What are the Fourth Amendment search minimization requirements?
The Appeals Court cited a U.S. Tenth Circuit Court of Appeals case adopting minimization, among four other requirements, as prerequisite protections under the Fourth Amendment for the issuance of a valid nonconsensual covert electronic surveillance search warrant by a judge and held:
“The warrants at issue did not set forth any specific written parameters to minimize the recording of innocent massage seekers, and law enforcement did not actually employ sufficient minimization techniques when monitoring the video or deciding what to record.”
The Appeals Court went on to quote the Tenth Circuit, stating “[t]he purpose of the minimization requirement is to avoid the recording of activity by persons with no connection to the crime under investigation who happen to enter an area covered by a camera.” To illustrate the effect of the failures by the issuing judge and law enforcement, the Appeals Court cited the “most egregious example” as how law enforcement was allowed to record continuously for 60 days, without any monitoring of the footage by law enforcement, resulting in 30 days of useless unmonitored recordings of presumptively innocent third party patrons (i.e. female patrons) in various degrees of nudity.
What are the compliance risks?
The penalty for law enforcement failure to protect the privacy of innocent third parties is absolute and comprehensive. Prosecutors argued that only innocent conduct should be excluded from evidence, but the Appeals Court responded that the purpose behind the evidence exclusionary rule is to deter unlawful police surveillance, and when a Fourth Amendment mandate is blatantly ignored and without good faith, rather than merely mishandled, the entire surveillance evidence must be suppressed. This rule is ostensibly intended to severely cripple any criminal prosecutions, as in the Kraft case, arising from, and substantially dependent on, the surveillance evidence.
How do you control this?
First, local law enforcement agencies must adopt a policy that requires law enforcement’s prosecuting attorney to conduct an analysis, prior to petitioning for the nonconsensual covert electronic surveillance search warrant, that analyzes whether the potential surveillance targets, innocent third parties (i.e. patrons) and criminal suspects (i.e. masseuses, owners, and johns), will likely have an expectation of privacy, in the targeted location of surveillance, that is objectively “justifiable” under the circumstances. If an affirmative conclusion results, the sworn affidant (i.e. law enforcement officer) seeking the warrant must apply relevant minimization techniques to the surveillance operations plan and include a description of the protections in the search warrant application, so that they will be mandated in the issuing court’s order. Typically, law enforcement agencies currently require the approval of principal prosecuting attorney of the state or local government, or by a high-ranking subordinate, before conducting electronic surveillance or petitioning a judge for a search warrant. The recommended analysis of reasonable expectation of privacy should be required as a pre-condition for that approval.
Second, an application for a search warrant for nonconsensual covert non-audio video surveillance of a prostitution ring operating from a spa and/or massage business that is open to the public may include the following optional minimization techniques, where they are applicable to the specific circumstances arising during the surveillance operation. These techniques should be outlined in guidelines promulgated under the related policies and procedures, discussed infra.
- Exclusion of female patrons entirely from surveillance, if after a reasonable period there is no evidence or allegations that they are engaging in solicitation;
- Employ “spot monitoring” of intercepted communications to determine whether any of the people named in the warrant, or any of their associates, are participants in the communications or whether the communications are criminal in nature;
- Terminate interception of communications when privileges arise, such as husband-wife spousal privilege (g. during a couples’ massage); and
- Terminate the interception of communications upon the determination that the objectives of the electronic surveillance (g. sufficient evidence to establish suspected crimes of prostitution, racketeering, or money laundering) have been accomplished, rather than continuing interception until the expiration of a pre-determined time period.
Lastly, law enforcement agencies should adopt policies and procedures consistent with ABA Criminal Justice Standards. The standards applicable to law enforcement should be made mandatory for all nonconsensual covert video surveillance of private spaces where individuals may have an objective reasonable expectation of privacy. And agencies will also need to implement training of law enforcement personnel on the adopted policies and procedures.