Legal Expert: Massage Parlor Sting that Ensnared Robert Kraft Raises Important Fourth Amendment Issues

Patriots owner and Kraft Mac & Cheese heir Robert Kraft was arrested in February after he was allegedly caught on video soliciting prostitution at a massage parlor that authorities claimed was connected to an international human trafficking ring. How did this happen? Authorities sneaked into the Orchids of Asia Day Spa in Jupiter, Florida and installed a bunch of cameras.

An article in CNBC (about a similar sting operation) explained this elaborate and judicially-sanctioned scheme to gather video evidence:

[D]etectives posed as employees of other occupations to get access to the massage parlors to install hidden cameras, [Martin County Sheriff William] Snyder said.

“We did not go in as law enforcement, and did not do any covert breaking and entering. Everything was a ruse,” he said.

While a judge did sign off on the surreptitious installation technique via delayed-notice–or sneek-and-peek–search warrants, the concept of a secret camera dragnet is constitutionality questionable.

Law&Crime reached out to computer law expert and criminal defense attorney Tor Ekeland for some insight on the issue.

“If the authorities had probable cause to think a crime was committed in that massage parlor, a judge listens to that and then they say ‘We’re going to be looking for evidence of prostitution,’ [but] where the problem arises with these things is: they have a camera in there now and it’s not just recording evidence of prostitution–it’s recording everything,” Ekeland said during a phone call. “Can they use evidence not related to prostitution to prosecute other crimes?”

Ekeland explained that this could be a problem because the Fourth Amendment requires three things: (1) that “all searches be reasonable”; (2) that authorities have “probable cause–evidence a crimes has been committed”; and (3) that warrants are authored and executed with particularity. The “warrant has to be specific” about what police are looking for and what they can obtain, Ekeland noted.

There are, of course, exceptions to those general requirements which have been enshrined by Supreme Court jurisprudence.

One such exception is the plain view doctrine which holds that authorities can seize evidence and/or contraband that are found in plain view during a lawful observation. The classic example, Ekeland noted, was when the cops bust down a door to execute a warrant but find a bag of cocaine on the table.

“That’s a simple case,” Ekeland said. “A more complicated issue is when they put a camera in–that looks more like a general warrant.”

General warrants are verboten in our constitutional republic. Using language from a recent Fourth Amendment case decided by the Supreme Court, Ekeland explained:

The reason you have the Fourth Amendment is to prevent against the government violating “the privacy and security of individuals against arbitrary invasions by governmental officials.” The Fourth Amendment seeks to secure “the privacies of life” against “arbitrary power” and by seeking “to place obstacles in the way of a too permeating police surveillance.”

That 2018 decision, stylized as Carpenter v. United States, detailed some of the Fourth Amendment’s history.

“The Founding generation crafted the Fourth Amendment as a ‘response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity,'” noted Chief Justice John Roberts.

Having a camera running would seem to ensnare quite a bit more than just evidence of prostitution.

“The issues with the cameras is: Are they executing a general warrant by rolling the cameras into this place 24/7? And do we want the government to have this kind of power?” Ekeland asked. “The Bill of Rights is skeptical of the government. It’s saying you can’t trust the government any more than you can trust the criminals.”

Ekeland said that the “question is where you draw that line.”

“You get into a dicey and difficult area where you put a camera in and you find evidence of other crimes,” he said. “It gets really tricky. Surveillance technology has gotten so cheap and easy to use but it’s running against the centuries-old Fourth Amendment.”

“No decent rational person supports sex trafficking but no decent rational person supports trashing the Bill of Rights either,” he added.

[image via Kevin Winter/Getty Images]

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