May 2019: Unconstitutional Encroachment…by the Jupiter Police Department

In late January 2019, dozens of men and women visited a day spa in the quiet, seaside community of Jupiter, Florida for private, relaxing massages.  As a matter of course, these customers—many of whom were of retirement age—disrobed.  Unbeknownst to them, the Jupiter Police Department (“JPD”) was secretly watching and recording these private encounters through hidden surveillance cameras the JPD surreptitiously installed as part of a run-of-the-mill investigation into low-level prostitution.  As part of this investigation, the JPD claims to have collected video surveillance footage of Robert Kraft—the owner of the six-time Super Bowl Champion New England Patriots—participating in paid sex acts.  On February 22, 2019, the JPD, in a televised press conference, announced it was charging Mr. Kraft (among other men) with solicitation of prostitution.  Shortly thereafter, Mr. Kraft retained Quinn Emanuel to lead his defense.

The firm quickly sought a protective order to prevent the public disclosure of the video footage.  With dozens of media organizations seeking access to the videos, the firm had to convince the Court that Florida’s public access laws, which are perhaps the most liberal in the country, must yield to Mr. Kraft’s constitutional rights.  This was no simple task.  For one, the Florida Constitution expressly recognizes the public’s right to access public records.  See Fla. Const. Art. 1 § 24.  Beyond that, the Florida Constitution states that an individual’s constitutional right to privacy “shall not be construed to limit the public’s right of access to public records[.]”  Fla. Const. Art. 1 § 23.  Notwithstanding these challenges, Judge Leonard Hanser of Florida’s 15th Judicial Circuit Court agreed with Mr. Kraft that a protective order was necessary to protect his constitutional rights—namely, his constitutional rights to a fair trial.  Accordingly, Judge Hanser, following extensive briefing and an all-day hearing, entered a protective order preventing the State from disseminating the videos until a jury was empaneled, a plea resolved the case, the State dismissed the charges, or any other time at which the Court found Mr. Kraft’s fair trial rights were not at risk.

Simultaneously, Quinn Emanuel mounted an aggressive constitutional challenge to the legality of the videos.  In particular, Mr. Kraft challenged the search warrant that authorized the use of covert video surveillance as violative of his Fourth Amendment rights.  In the Fourth Amendment context, it is widely recognized that “covert video surveillance is a severe intrusion into a person’s privacy expectations, which provokes an immediate negative visceral reaction and raises the specter of the Orwellian state.” United States v. Anderson-Bagshaw, 509 F. App’x 396, 421 (6th Cir. 2012).  As a result, covert video surveillance is “justifiable only in rare circumstances.” Bernhard v. City of Ontario, 270 F. App’x 518, 520 (9th Cir. 2008).  Thus, in order to lawfully use covert video surveillance in connection with a law enforcement investigation, the State must establish that such invasive surveillance is absolutely necessary, particularized, appropriate in duration, and minimized to avoid surveilling lawful activity.  See United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990).  Quinn Emanuel filed a motion to suppress, arguing that these requirements were not met.  Among other things, Quinn Emanuel argued that the search warrant issued here was facially invalid insofar as it failed to contain any minimization instructions.  As a result, the warrant allowed the JPD to conduct unfettered recording of all activity—legal or illegal—and any type of person (male or female) entering the Spa.  After extensive briefing and a three-day suppression hearing, Judge Hanser agreed with Mr. Kraft that the search warrant failed to satisfy the minimization standard.  According to Judge Hanser, the warrant “fail[ed] to consider and include instructions on minimizing the impact on women…in a setting with a high legitimate expectation of privacy” and contained “no minimization techniques or directives” to be implemented by the JPD when “viewing male spa clients receiving lawful services.”  Judge Hanser, therefore, suppressed the videos as unlawfully obtained.  He also suppressed all evidence derived therefrom, including a subsequent traffic stop that allowed the JPD to identify Mr. Kraft.

Immediately after the videos were suppressed, Quinn Emanuel filed a motion to modify the protective order to have the videos permanently sealed in light of the Court’s determination that they were illegally obtained.  That motion is pending.  Meanwhile, the State has filed an interlocutory appeal of Judge Hanser’s order granting suppression, which will likely be heard by Florida’s Fourth District Court of Appeal.  The State has also filed a motion to stay the proceeding before Judge Hanser during the pendency of its appeal, which, together with its interlocutory appeal, make it impossible for the State to proceed with its case against Mr. Kraft at this time.  Quinn Emanuel will continue to represent Mr. Kraft through the State’s appeal.