Opinion

More People Should Be Outraged By What Police Did to Catch Robert Kraft

My trust in the privacy of the massage room has been unintentionally shattered by New England Patriots owner Robert Kraft. He allegedly exposed his private parts so I could learn that mine are not protected from the police’s prying eyes. 

The very disturbing reality of what police did came to light during a evidence suppression hearing in Palm Beach County, Florida. Kraft sought to suppress the videos recorded by police as evidence to prove prostitution- cash payment for what I have coined “a certain type of sex” between a 58-year-old woman and a 77-year-old widower. 

Robert Kraft’s body parts (and alleged sexual gratification) were videoed under a previously little-known warrant called a “sneak and peek” warrant.  Investigators placed four video cameras in four rooms in a massage, waxing, facial day spa in a strip mall in Jupiter, Florida. To accomplish this, police called in a phony bomb threat, emptied a strip mall shopping center, and installed the hidden cameras. Their aim? To catch misdemeanor prostitution allegedly underway in those rooms.  Under such a warrant- because what is recorded can be so invasive- police must do what they can to ‘minimize’ any invasion of privacy for otherwise law-abiding citizens. 

The prosecution has argued that the warrant issued by a judge earlier this year was valid. Prosecutors claim since police wanted to show the spa derived support from prostitution, the video was legally necessary under the law as corroborative proof. Further, observations by the health inspector in a license inspection requested by the police lead her to conclude people were living in a room at the spa- which gave rise to the implication possible human trafficking. The warrant was modeled after a similar investigation in Martin County, Florida.

The defense countered that the warrant violated both the Fourth Amendment of the United States Constitution against search and seizure and the Florida State Constitution. Why? 1) That a sneak and peek video approval was overbroad in that it is supposed to be used in the most serious of cases- not misdemeanor prostitution pointing to already obtained customer confessions. 2) That relying on a set-up inspection by the health inspector was improper. 3) That the police misrepresented to the judge that human trafficking was taking place. In fact, it was later confirmed by the District Attorney that no evidence of human trafficking was present in this case. This latter argument was buttressed by the suppression of the video surveillance tapes in the Martin county matter. 4) And last but not least, that the failure of police to minimize intrusion to prevent searching innocent victims did not occur. There were no protocols or guidelines uniformly applied to avoid videotaping innocent clients of the spa- both men and women- getting legal massages.

It was undisputed that the spa provided normal and legal services to clients frequenting the spa to have stress releasing massages — and may have gotten unintentionally peeked on by the police. One officer testified he watched to see the beginning of the process of getting a massage- that is, when you become nude or partially nude, made an initial judgment it was legal, then went back to see if his initial determination was correct. Even where legitimate massages were taking place, this male cop testified that he likely watched 6-8 minutes of the legal massage- one was of a woman. Another female officer said she made her own judgment based on different criteria. For instance, if the person was nude, it met her criteria for watching and recording as an illegal massage. If the person kept on underwear, her panties or his shorts, it was likely legal.  If the client got on the massage table on top of a sheet, it may also have met the criteria of an illegal massage. I was startled by this testimony. Gene Rossi, a former federal prosecutor for 30 years, also expressed his distress at the idea that nudeness in a massage room would be a strong indicator of illegal activity for when a law enforcement decides to tape you.

Didn’t the police know people disrobe, many completely nude for massages?  Did they consult with massage therapists? So, I asked the people I trust the most- my own massage and physical therapists for many years both before and post my bilateral hip replacement operation. Trish Stallone who has been an orthopedic & sports physical therapist since 2001 and has a Masters in Physical Therapy from Columbia University told me that the client- me – determines how clothed I wish to be during a therapeutic massage/physical therapy session. 

My massage therapist Susan Dexter in MA, who kept me moving before my hip replacements, sent me pictures showing a gluteal drape from Massage and Bodywork Magazine July 2015 and said “It is the client’s choice whether to leave underwear on or not, after being assured that he/she will remain covered regardless.  A client must always feel safe, and that boundaries are respected. The table is covered with 2 layers of sheets, between which the client positions him/herself before the therapist enters the room. The client does that themselves before the therapist enters the room, after a knock on the door and verbal permission from the client to enter.”

Her schooling says client should not be without a drape during the massage because it is subject to misinterpretation. Maybe that is what happened here for the legal massages. But it is still irrelevant to my privacy. Because here is the rub: if you take off your underwear as many people do, you have to get onto the massage table nude first before you use any drape. It is in that period the person getting a massage is definitely exposed. The very thing for which a client may use a drape- privacy -is eradicated if there is a sneaky peek by law enforcement watching and videoing the disrobing part. 

So, the next time you disrobe for a massage- a part of your body may be smiling to hidden cameras, watched by many police probing eyes on a tablet and simultaneously on a large television screen. This even if you are an innocent paying customer disrobing for a therapeutic massage.  Did I mention that the Department of Homeland Security was involved in this operation? 

My trust in the privacy of my massage room has been shattered by the video intrusion, no matter how long or short the time into the sanctity of the innocent massage. But if Robert Kraft succeeds in suppressing the warrant and his video, he will have taken a major step in protecting the privacy of all of us and restoring my trust in my privacy.

Linda Kenney Baden is a Law&Crime host and longtime criminal defense attorney, who has previously represented Aaron Hernandez, Casey Anthony and Phil Spector. 

This is an opinion piece. The views expressed in this article are those of just the author.

Linda Kenney Baden is a former criminal prosecutor and trial attorney known for high-profile cases such as Aaron Hernandez and Casey Anthony. She represented music producer Phil Spector in his first murder trial and was portrayed by Dame Helen Mirren in a SAG award-winning performance for the television film, Phil Spector. Linda Kenney Baden is a Magna Cum Laude graduate of Rutgers University, she then went on to graduate from Rutgers School of Law. Following graduation from law school, she served a judicial clerkship with the Presiding Judge of the Appellate Division, Judge John F. Lynch, and then entered private practice with the law firm of Meyner and Landis in Newark. Ms. Kenney Baden was later appointed Assistant Prosecutor for the Monmouth County Prosecutor’s Office where she served as a trial team leader and the lead attorney assigned to the Sex Crimes Investigative Unit. During her tenure with the Prosecutor’s Office, she prepared and tried numerous criminal cases including those involving murder and the death penalty. Ms. Kenney Baden is now a private trial attorney who focuses on criminal defense and civil rights. Photo credit: Clay Patrick McBride

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