Professional Documents
Culture Documents
Kraft Answer Appeal
Kraft Answer Appeal
STATE OF FLORIDA
Appellant,
vs.
ROBERT KRAFT
Appellee.
[email protected]
[email protected]
[email protected]
1300 I Street NW, Suite 900
Washington, D.C. 20005
(202) 538-8000
[email protected]
51 Madison Avenue, 22nd Floor
New York, NY 10010
(212) 849-7000
i
TABLE OF AUTHORITIES
CASES
Alderman v. United States,
394 U.S. 165 (1969) ............................................................................................31
Atkins v. State,
930 So. 2d 678 (Fla. 4th DCA 2006) ..................................................................50
Berger v. New York,
388 U.S. 41 (1967) ....................................................................................... 20, 21
Bernhard v. City of Ontario,
270 F. App’x 518 (9th Cir. 2008) .......................................................................40
Brannum v. Overton Cty. Sch. Bd.,
516 F.3d 489 (6th Cir. 2008)........................................................................ 17, 40
Bruce v. Beary,
498 F.3d 1232 (11th Cir. 2007) ..........................................................................46
Byrd v. United States,
138 S. Ct. 1518 (2018) ........................................................................................30
Calder v. State,
133 So. 3d 1025 (Fla. 4th DCA 2014) ................................................................16
Carpenter v. United States,
138 S. Ct. 2206 (2018) ....................................................................................3, 21
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) ..............................................................................................46
Delacruz v. State,
276 So. 3d 21 (Fla. 4th DCA 2019) ....................................................................47
Falls v. Nat’l Envtl. Prod.,
665 So. 2d 320 (Fla. 4th DCA 1995) ..................................................................15
Franklin v. State,
275 So. 3d 192 (Fla. 4th DCA 2019) ..................................................................19
Franks v. Delaware,
438 U.S. 154 (1978) ............................................................................................44
Franqui v. State,
965 So. 2d 22 (Fla. 2007) ....................................................................................18
ii
Gouled v. United States,
255 U.S. 298 (1921) ............................................................................................21
Groh v. Ramirez,
540 U.S. 551 (2004) ......................................................................... 25, 33, 37, 38
Harper v. Lindsay,
616 F.2d 849 (5th Cir. 1980)........................................................................ 28, 40
Horning-Keating v. State,
777 So. 2d 438 (Fla. 5th DCA 2001) ..................................................................40
Hudson v. State,
368 So. 2d 899 (Fla. 3d DCA 1979) ...................................................................22
Johnson v. State,
660 So. 2d 648 (Fla. 1995) ..................................................................................44
Katz v. United States,
389 U.S. 347 (1967) ............................................................................................20
Klingenstein v. State,
624 A.2d 532 (Md. 1993)....................................................................................36
Kyllo v. United States,
533 U.S. 27 (2001) ..............................................................................................21
Mapp v. Ohio,
367 U.S. 643 (1961) ............................................................................................29
McDade v. State,
154 So. 3d 292 (Fla. 2014) ..................................................................................33
Morris v. State,
622 So. 2d 67 (Fla. 4th DCA 1993) ....................................................... 47, 49, 50
Myrick v. Bd. of Comm’rs,
677 P.2d 140 (Wash. 1984) .......................................................................... 28, 40
People v. Dezek,
308 N.W.2d 652 (Mich. Ct. App. 1981) .............................................................18
People v. Teicher,
422 N.E.2d 506 (N.Y. 1981) ...............................................................................18
People v. Xuan,
2011 WL 1515058 (N.Y. Cty. Ct. Apr. 18, 2011) ..............................................43
Price v. State,
2019 WL 3676354 (Fla. 4th DCA Aug. 7, 2019) ...............................................16
iii
Ragland v. State,
870 A.2d 609 (Md. 2005)....................................................................................18
Rakas v. Illinois,
439 U.S. 128 (1978) ............................................................................................31
Ramirez v. State,
654 So. 2d 1222 (Fla. 2d DCA 1995) .................................................................40
Richardson v. United States,
526 U.S. 813 (1999) ............................................................................................31
Ricks v. State,
537 A.2d 612 (Md. 1988)....................................................................................18
Rodriguez v. State,
297 So. 2d 15 (Fla. 1974) ..................................................... 23, 24, 25, 34, 35, 36
Rolling v. State,
695 So. 2d 278 (Fla. 1997) ..................................................................................16
Scott v. United States,
436 U.S. 128 (1978) ............................................................................... 23, 25, 36
State ex rel. Wilson v. Quigg,
17 So. 2d 697 (Fla. 1944) ....................................................................................50
State v. Butler,
1 So. 3d 242 (Fla. 1st DCA 2008) ............................................................... 39, 40
State v. Catania,
427 A.2d 537 (N.J. 1981) ............................................................................. 32, 34
State v. Collazo,
93 So. 3d 417 (Fla. 4th DCA 2012) ....................................................................19
State v. Dougan,
202 So. 3d 363 (Fla. 2016) ..................................................................................18
State v. Garcia,
547 So. 2d 628 (Fla. 1989) ..................................................................................50
State v. Geiss,
70 So. 3d 642 (Fla. 5th DCA 2011) ............................................................. 47, 48
State v. Hankerson,
65 So. 3d 502 (Fla. 2011) ............................................................................. 16, 39
State v. Hill,
980 So. 2d 1181 (Fla. 4th DCA 2008) ................................................................48
iv
State v. Monsrud,
337 N.W.2d 652 (Minn. 1983)............................................................................36
State v. Regalada,
2017 WL 4247043 (N.J. App. Div. Sept. 26, 2017) ...........................................43
State v. Rivers,
660 So. 2d 1360 (Fla. 1995) ................................................................... 48, 49, 50
State v. Song,
748 P.2d 273 (Wash. 1988) .................................................................................43
State v. Suco,
521 So. 2d 1100 (Fla. 1988) ................................................................................31
State v. Thompson,
464 A.2d 799 (Conn. 1983) ................................................................................32
Thorp v. State,
777 So. 2d 385 (Fla. 2000) ........................................................................... 44, 45
United States v. Anderson,
39 F.3d 331 (D.C. Cir. 1994) ..............................................................................31
United States v. Biasucci,
786 F.2d 504 (2d Cir. 1986)............................................................. 20, 21, 38, 39
United States v. Blackmon,
273 F.3d 1204 (9th Cir. 2001) ............................................................................43
United States v. Buckley,
4 F.3d 552 (7th Cir. 1993)...................................................................................36
United States v. Cleveland,
964 F. Supp. 1073 (E.D. La. 1997) .....................................................................35
United States v. Cox,
462 F.2d 1293 (8th Cir. 1972) ............................................................................36
United States v. Cuevas-Sanchez,
821 F.2d 248 (5th Cir. 1987)...............................................................................17
United States v. deLay,
988 F.2d 123 (9th Cir. 1993) ...............................................................................31
United States v. Falls,
34 F.3d 674 (8th Cir. 1994).......................................................................... 17, 39
United States v. Gaytan,
74 F.3d 545 (5th Cir. 1996).................................................................................36
v
United States v. Giordano,
416 U.S. 505 (1974) ............................................................................................44
United States v. Gonzalez, Inc.,
412 F.3d 1102 (9th Cir. 2005) ............................................................................42
United States v. Ippolito,
774 F.2d 1482 (9th Cir. 1985) ............................................................... 39, 41, 45
United States v. Kahn,
415 U.S. 143 (1974) ............................................................................................39
United States v. Koyomejian,
970 F.2d 536 (9th Cir. 1992)...............................................................................19
United States v. Lambus,
897 F.3d 368 (2d Cir. 2018)................................................................................45
United States v. Leon,
468 U.S. 897 (1984) ............................................................................... 37, 38, 45
United States v. Lilla,
699 F.2d 99 (2d Cir. 1983) ............................................................... 29, 40, 41, 43
United States v. Mansoori,
304 F.3d 635 (7th Cir. 2002)...............................................................................30
United States v. Mesa-Rincon,
911 F.2d 1433 (10th Cir. 1990) ..................................... 18, 20, 22, 27, 39, 42, 49
United States v. Nerber,
222 F.3d 597 (9th Cir. 2000)...............................................................................17
United States v. North,
735 F.3d 212 (5th Cir. 2013)...............................................................................27
United States v. Oriakhi,
57 F.3d 1290 (4th Cir. 1995)...............................................................................39
United States v. Principie,
531 F.2d 1132 (2d Cir. 1976)..............................................................................36
United States v. Renzi,
722 F. Supp. 2d 1100 (D. Ariz. 2010) ................................................................27
United States v. Scott,
504 F.2d 194 (D.C. Cir. 1974) ............................................................... 31, 32, 36
United States v. Scurry,
821 F.3d 1 (D.C. Cir. 2016) ................................................................................24
vi
United States v. Simels,
2009 WL 1924746 (E.D.N.Y. July 2, 2009) .......................................... 27, 34, 35
United States v. Suquet,
547 F. Supp. 1034 (N.D. Ill. 1982) .....................................................................32
United States v. Torres,
751 F.2d 875 (7th Cir. 1984)...................................................... 17, 21, 29, 38, 39
United States v. Turner,
528 F.2d 143 (9th Cir. 1975)...............................................................................35
United States v. Willey,
57 F.3d 1374 (5th Cir. 1995)...............................................................................36
United States v. Williams,
124 F.3d 411 (3d Cir. 1997)......................................................................... 18, 45
United States v. Willis,
890 F.2d 1099 (10th Cir. 1989) ..........................................................................31
Waller v. Georgia,
467 U.S. 39 (1984) ....................................................................................... 35, 36
Warden v. Hayden,
387 U.S. 294 (1967) ............................................................................................21
Wilson v. Russo,
212 F.3d 781 (3d Cir. 2000)................................................................................46
Zhang v. State,
2010 WL 2220603 (Tex. Ct. App. June 3, 2010) ...............................................43
Zuppardi v. State,
367 So. 2d 601 (Fla. 1978) ........................................................................... 39, 43
STATUTES
§ 90.202, Fla. Stat. ...................................................................................................15
§ 796.07, Fla. Stat. ...................................................................................................12
§ 810.145, Fla. Stat. .................................................................................................28
§ 933.02, Fla. Stat. ...................................................................................................49
§ 934.01, Fla. Stat. ................................................................................................... 48
§ 934.02, Fla. Stat. .....................................................................................................9
§ 934.07, Fla. Stat. ...............................................................................................9, 48
vii
Ch. 2000-369, § 10, Laws of Fla. ......................................................................48, 49
42 U.S.C. § 1983 ......................................................................................................37
OTHER AUTHORITIES
1 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 2.2(f),
Westlaw (database updated Oct. 2019) ......................................................... 17, 18
Clifford S. Fishman & Anne T. McKenna,
Wiretapping and Eavesdropping §§ 35:54, 35:67, Westlaw (database
updated Dec. 2018) ....................................................................................... 32, 36
Gary Trock & Mike Walters,
Robert Kraft Naked Spa Video Being Shopped Around as Judge Halts
Public Release of Tape, The Blast (Apr. 17, 2019), https://bit.ly/32somYs .......13
viii
PRELIMINARY STATEMENT AND SUMMARY OF THE ARGUMENT
The State’s position in its opening brief imperils civil liberties long embraced
across the United States. Beneath the State’s legal arguments lies a bid to dismantle
stakes here vastly surpass those of a routine misdemeanor case. Civil liberties
cherished in Florida and beyond depend on this Court affirming the order at issue.
The trial court suppressed videos resulting from one of the most intrusive,
massage studio that was suspected of deriving support from prostitution. Police
monitored and recorded via cameras they surreptitiously installed (under auspices of
transpired, whether innocent or suspect, 24-hours per day for five days straight.
All three trial judges in these consolidated cases independently ruled that the
applies in this context, and that the evidence should therefore be suppressed. Trial
1
judges in other parallel cases have reached the same conclusion, even where the basis
for suppression was less overwhelming than that here.1 Indeed, after the County
Court ordered suppression in this case, the State itself conceded in its prosecution of
the Spa’s employees (although it omits to mention it) that police did not “not
minimize[] properly” and theirs was “not a good-faith effort.” R.3214, 3221, State
v. Zhang, No. 4D19-2024 (Fla. 4th DCA Aug. 14, 2019) (hereinafter “Zhang R.”).
upending a settled mass of Fourth Amendment law might the State urge reversal.
But the State nevertheless urges reversal. By the State’s account, law
enforcement should have a blank check to unleash its most drastic, invasive
be available to a criminal defendant or reviewing court. If the State wins this appeal,
then everyone loses, not just the accused. Government could run roughshod over
privacy and constitutional rights while evading scrutiny and check. That outcome
would be directly counter to the Constitution, civil liberties, and the rule of law. This
Court has multiple grounds to choose among, but it should affirm suppression.
1
R.691–96, 2065–66; R.199–206, State v. Freels, No. 4D19-1655 (Fla. 4th
DCA July 29, 2019).
2
It bears emphasizing that the State’s invocation of the Fourth Amendment’s
“plain text” is badly misplaced. State’s Br. at 13. Contrary to the State’s suggestion,
encroach upon areas normally guarded from inquisitive eyes,” nor would they place
the citizenry “at the mercy of advancing technology.” Carpenter v. United States,
138 S. Ct. 2206, 2214 (2018) (citation omitted). To the contrary, the “central aim of
the Framers was to place obstacles in the way of a too permeating police
Under any reasonable view of the law, these videos should remain suppressed.
First, courts unanimously agree that the Fourth Amendment imposes strict
government intrusion. Not only did the State fail to argue the contrary in the County
Court, but it repeatedly relied on this uniform body of case law to defend its conduct;
it cannot now urge a break from this precedent for the first time on appeal. Here, no
good-faith effort was made to minimize, as even the State unequivocally conceded
in court. As a result, “some totally innocent women and men had their entire lawful
time spent in a massage room fully recorded and viewed intermittently.” R.2099.
Bereft of any serious claim that it minimized, the State tries to argue
procedural grounds for warding off any remedy for its conceded minimization
failure. But Mr. Kraft clearly has standing to challenge illicit videos of him, and his
3
arguments as to the invalidity of the warrant and search are part and parcel of that.
Were the State’s perverse view of the law accepted, the minimization requirement
would be gutted: criminal defendants could not raise minimization failures, and
virtually no one else would be positioned to complain, let alone obtain redress. Law
injecting the most invasive forms of surveillance into the most sensitive settings.
Second, far from being necessary, the video surveillance was wholly
gratuitous. The police already had everything they needed to prove prostitution. If,
as they claim, they were investigating deriving support from the proceeds of
prostitution, then they should have been focusing on the register and financial
massages—to make that case. The warrant application’s boilerplate about the
supposed difficulties plaguing prostitution investigations was not only deficient, but
Third, the good-faith exception has no application here. The State concedes
that no “good-faith effort” was made to minimize, Zhang R.3214, 3221, and the
police knew better than any issuing judge could that their copied-and-pasted account
deliberately misleading the issuing judge, the detective who applied rendered the
warrant invalid and the good-faith exception inapplicable. Among other things, the
4
applicant’s repeated allusions to human trafficking were unfounded, as he well knew
and the State quickly conceded. The material misrepresentations underlying the
construed, and warrants and searches must strictly conform. Video surveillance via
requisite authority from Chapter 934, the Florida Supreme Court and Legislature
have made clear that those statutes do not authorize surveillance to investigate
prostitution-related offenses. They have likewise made clear that the good-faith
exception does not apply to violations of Chapter 934. In any event, because Chapter
offenses, any reasonable officer should have known the warrant was facially invalid.
(“JPD”) began investigating possible prostitution at the Orchids of Asia Day Spa
(the “Spa”), after learning of a separate investigation into possible human trafficking
Sharp focused only on prostitution because he had no evidence that the Spa’s
5
middle-aged, licensed massage therapists were victims of human trafficking.
Sharp’s first step was a Google search. R.3252. According to Sharp, online
“reviews indicated the business was a ‘rub and tug’” where men could receive
the Spa. R.3254. He claimed in his warrant application that he “only observed male
clients enter and exit the business, despite the listing advertising … services for
female clients. R.2438. After his in-person stake-out, Sharp continued 24-hour
video surveillance of the Spa’s exterior until November 14, 2018. R.3255. He
claimed that only male clients visited the Spa throughout that period too. Id.
the Spa. R.3255. Sharp did not believe he then had enough evidence for a warrant.
R.2527. But Martin County investigators told him that Herzog had similarly helped
go through formal channels or contact the DOH location “basically across the street”
from the Spa, R.2526, Sharp called Herzog on her cellphone. R.2527.
6
Herzog and Sharp closely coordinated her “routine” inspection. R.3255. The
JPD stationed unmarked cars outside so that, if a Spa employee “r[a]n out” and
“discard[ed] items or other things,” they would be there to “gather it and … have it
valid massage and driver’s licenses. R.2694–96, 2717, 3336–39. After observing
two beds, clothing, and a refrigerator, R.3255, Herzog wrote “N/A” in the portion of
her report asking whether the “establishment [was] being used as a principle [sic]
domicile,” R.3353. Her report otherwise indicated that the Spa was licensed and
and certified her report as “true and correct to the best of [her] knowledge.” R.3353.
her report to indicate the Spa was being used as a principal domicile, R.2734–35,
in the Spa’s garbage bin. R.3255. They searched the bin that evening and found
plastic “grocery style” bags. R.3256. Inside the bags, they found napkins that tested
positive for seminal fluid. Id. They also found a shredded ledger that referred to a
7
woman listed on one of the websites Sharp had visited. Id. A later search of the
The JPD resumed its surveillance on January 10, 2019. Id. During that
operation, the JPD followed four customers after they left the Spa, stopping each for
services inside. Id. And three identified from photos of the Spa’s employees the
“sneak and peek” video, non-audio surveillance of the Spa’s private massage rooms.
R.3259–61. Sharp copied and pasted extensively from an application Martin County
investigators sent him and from the State Attorney’s “template,” resulting in a string
Although this was his very first prostitution investigation and he had no
including the confirmation of prostitution from the male clients and the napkins that
8
customers receiving massages were necessary to “conclusively say prostitution is
occurring inside the business.” R.3256–59. Sharp then cited his supposed
While representing that he was only investigating deriving support from the
claimed that Herzog indicated that the Spa was being used as a residence, even
though her report then said otherwise. R.3252, 3255, 3353. He also termed “girls”
the 45–58-year-old licensed massage therapists working at the Spa. R.3259, 3339,
Sharp also assured the court that the proposed surveillance would comply with
seek the warrant as “a duly sworn law enforcement officer within the meaning of
F.S.S. 934.02(6) [who is] empowered to make arrests for the offences [sic]
see §§ 934.02, 934.07, Fla. Stat. He claimed to have “strongly considered” federal
cases that “addressed the parameters” for video surveillance. R.3259. Those cases
imposed “safeguards by analogy to those required by [the Wiretap Act]” but did not
9
“adopt[] … requirements that do more than implement constitutional requirements.”
R.3259. In this case, Sharp submitted, “all guidelines ha[d] been met.” R.3260.
The court issued the warrant that same day. R.3264. The warrant imposed
just three restrictions on the surveillance: (1) “[t]here will be no cameras installed
bedrooms”; (2) “the view of the video monitor will be situated in the monitoring
room such that the view is not observable by persons other than those persons
monitoring the view in the proper performance of the monitor’s official duty”; and
(3) the “surveillance will be monitored during the business’s hours of operation
which has been determined through prior surveillance as.”2 R.3264. The warrant
undercover officer, who received a massage. R.2956–58. That evening, the JPD
faked a bomb scare, R.2363–65, and forced employees and customers to evacuate
cameras in the Spa’s public areas and massage rooms, R.2362–63, 2370–72.
From January 18–22, 2019, the JPD continuously monitored and recorded the
Spa’s owners, employees, and patrons. R.2362. Patrons were recorded from when
2
The court left blank the Spa’s hours of business. R.3264.
10
they entered private massage rooms until they left, including when they were
disrobed. R.1237, 2372. The two monitoring detectives were told only to look for
illegal activity, without any written or even oral instruction how to minimize.
R.1241–42, 1272, 1279–80, 2099. One detective testified that her only knowledge
about minimization came from a conversation with her husband “way prior to this.”
R.1272. Both watched female clients undress and receive massages, even though
female clients were never suspected of receiving sexual services. R.1231, 1238,
1280–81. The detectives could focus on a particular room but could not stop the
cameras from recording all rooms at all times. R.1240. The State recorded 39
massages in their entirety. R.3238. Of those, the State concedes it lacks probable
cause to believe that 14 patrons (about 36 percent) committed a crime, including four
After Mr. Kraft left on January 19, an officer followed him and radioed a second
officer to stop him. Id. The County Court found “[t]he sole purpose of stopping the
car was to identify the Defendant as the person who had left the Spa.” Id.
3
To claim that “90% of recorded video reflect[ed] criminal misconduct,”
State’s Br. 1, the State omits ten cases where it lacked even probable cause, as well
as its continuous recordings when patrons were absent, R.3238; State’s Br. 7.
11
On February 19, 2019, the JPD raided the Spa. R.203. At a press conference
three days later, it announced charges against Mr. Kraft based on the videos. R.204.
Chief Daniel Kerr opened his remarks thusly: “Obviously our concern in this
the appearance, maybe, of that.” R.203. Palm Beach County State Attorney David
G. Course of Proceedings
On February 25, 2019, Mr. Kraft was charged by information in the Palm
§ 796.07(2)(f) and (5)(a)(1), Fla. Stat. R.26–27. He pleaded not guilty. R.31, 61.
From the outset, the State hastened to threaten public disclosure of the
compromising videos of Mr. Kraft. First, the State repeatedly sought to characterize
render the videos public records. R.537, 540, 1820–24. Indeed, after having shown
the videos to one of Mr. Kraft’s attorneys, the State maintained that a second
exemptions to the point of contradicting both the JPD and State Attorney Aronberg,
R.203, 210–18, by admitting it had “no evidence … that there’s human trafficking
12
involved,” R.1820–27; see R.559 (County Court noting that “the State ha[s] receded
Then, just five days after assuring the County Court that it would not release
the videos pending ruling on Mr. Kraft’s request for a protective order, R.2159–60,
the State submitted in parallel proceedings that it would, in fact, be publicly releasing
the videos before the County Court could rule, R.496–98. After Mr. Kraft and others
sought emergency relief, both courts swiftly entered protective orders to prevent the
State from proceeding as threatened. R.564–65; Zhang R.303–04. Even so, a tabloid
soon reported that someone had tried to sell the videos and had even shown portions
of them in violation of the courts’ orders. See Gary Trock & Mike Walters, Robert
Kraft Naked Spa Video Being Shopped Around as Judge Halts Public Release of
Tape, The Blast (Apr. 17, 2019), https://bit.ly/32somYs. The State has never
responded to Mr. Kraft’s repeated, pointed requests that the State promptly
On March 28, 2019, Mr. Kraft moved to suppress the JPD’s recordings and
evidence from the resulting traffic stop of him. R.75–81. Over the course of a three-
day suppression hearing, the County Court heard live testimony from Sharp, Herzog,
the monitoring detectives, and three officers involved in the traffic stop. R.13–22.
On May 13, 2019, the County Court granted suppression. R.2055. It first
rejected the State’s argument that Mr. Kraft had no legitimate expectation of privacy
13
in the private massage rooms. R.2093–94. “Seeking even legitimate services in a
spa normally involves removing all or most of a person’s clothing, behavior almost
Mr. Kraft “may have been engaged in criminal activity.” R.2094. From there, the
R.2095. In the absence of controlling Florida precedent, the court followed federal
the warrant restricted use of cameras in certain areas, a “client, whether engaging in
innocent or illegal activity, would not be likely to frequent those … areas.” R.2098.
especially considering that the search warrant did not allege women were seeking
illegal contact.” R.2098. Another flaw was the “fail[ure] to include any
services.” R.2098–99. Yet another flaw was the lack of “written guidelines” and
women and men ha[ving] their entire lawful time spent in a massage room fully
14
recorded and viewed.” R.2099. Still worse, detectives ignored “circumstances that
should have alerted them that illegal activity was not likely to occur.” R.2100.
Because “[t]he sole purpose of stopping [Mr. Kraft’s] car was to identify [him] as
the person who had left the Spa a few minutes earlier,” “all information obtained
through the stop … [w]as the fruit of an unlawful search.” R.2093, 2101.
ordering suppression based on the failure to minimize.4 Lest there be any doubt,
after the County Court ordered suppression in this case, the State itself conceded its
employees in Circuit Court—a separate case involving precisely the same warrant
and surveillance at issue here. The State there confessed, “We all agree that they
were not minimized properly” and “we know when we didn’t stop recording that
On May 23, 2019, the County Court certified three questions for review:
(1) whether Mr. Kraft “ha[s] standing to raise a Fourth Amendment defense”;
4
Zhang R.487–98; R.199–206, State v. Freels, No. 4D19-1655 (Fla. 4th
DCA July 29, 2019); R.691–96.
5
This Court may take judicial notice of these concessions, which appear in
this Court’s records in a consolidated case involving the same search. See
§ 90.202(6), Fla. Stat.; Falls v. Nat’l Envtl. Prod., 665 So. 2d 320, 321 (Fla. 4th DCA
1995); see also Order, State v. Kraft, No. 4D-1499 (Fla. 4th DCA July 16, 2019)
(consolidating cases for designation to same panel).
15
(2) whether the “[w]arrant satisf[ied] Fourth Amendment requirements”; and
(3) whether the search was “executed in a manner sufficient to satisfy Fourth
jurisdiction, see Fla. R. App. P. 9.160(e)(2), and consolidated this case with appeals
related cases. Order, State v. Kraft, No. 4D-1499 (Fla. 4th DCA July 16, 2019).
STANDARD OF REVIEW
This Court applies a “mixed standard” of review to suppression rulings. Price
v. State, 2019 WL 3676354, at *2 (Fla. 4th DCA Aug. 7, 2019). It “will defer to the
trial court’s findings of fact if they are supported by competent, substantial evidence”
and “review de novo the trial court’s application of the law to the facts.” Calder v.
State, 133 So. 3d 1025, 1029 (Fla. 4th DCA 2014). “A trial court’s ruling on a
correctness and the court must interpret the evidence and reasonable inferences and
court’s ruling.” Rolling v. State, 695 So. 2d 278, 291 (Fla. 1997). In addition, “an
judgment, is not limited to consideration of the reasons given by the trial court but
rather must affirm the judgment if it is legally correct regardless of those reasons.”
16
ARGUMENT
I. The Warrant and Search Were Invalid Under the Fourth Amendment
Although “no [statutes or] rules of criminal procedure … specifically address[]
surveillance “subject to the strictures of the Fourth Amendment,” see, e.g., Brannum
v. Overton Cty. Sch. Bd., 516 F.3d 489, 494–95 (6th Cir. 2008) (collecting cases).
Indeed, video surveillance “is even more invasive of privacy [than wiretapping and
bugging], just as a strip search is more invasive than a pat-down search.” United
States v. Torres, 751 F.2d 875, 885 (7th Cir. 1984) (Posner, J.).6 Every U.S. Court
of Appeals to consider the issue has held that the Fourth Amendment prohibits video
surveillance unless:
(1) there has been a showing that probable cause exists …; (2) the order
particularly describes the place to be searched and the things to be
seized in accordance with the fourth amendment; (3) the order is
sufficiently precise so as to minimize the recording of activities not
related to the crimes under investigation; (4) the judge issuing the order
finds that normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or appear
6
Accord United States v. Nerber, 222 F.3d 597, 603 (9th Cir. 2000) (“Hidden
video surveillance is one of the most intrusive investigative mechanisms ….”);
United States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994) (“It is clear that silent video
surveillance … results in a very serious, some say Orwellian, invasion of privacy.”);
United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987)
(“[I]ndiscriminate video surveillance raises the spectre of the Orwellian state.”); 1
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.2(f)
& n.313, Westlaw (database updated Oct. 2019) (collecting cases).
17
to be too dangerous; and (5) the order does not allow the period of
interception to be longer than necessary ….
United States v. Mesa-Rincon, 911 F.2d 1433, 1437 (10th Cir. 1990); see id. at 1438
& n.5 (three other circuits imposed same requirements); United States v. Williams,
124 F.3d 411, 417 (3d Cir. 1997) (Alito, J.); 1 LaFave, supra, § 2.2(f) n.313. Nor
does any state court support the State, for they too are in accord.7
The State urges this Court to break from this uniform, persuasive precedent to
instead follow what the State calls its “plain text” analysis of the Warrant Clause.
State’s Br. 13–20. But the State’s new reading of the “plain text” was plainly waived.
Not only did the State fail to argue that minimization and necessity should not be
required, but it repeatedly relied on the federal cases that hold the opposite, R.621–
24, 630, just as the JPD did in applying for the warrant, R.3259–60. “[A]rgument[s]
raised for the first time on appeal” are “procedurally barred.” Franqui v. State, 965
So. 2d 22, 32 (Fla. 2007); see State v. Dougan, 202 So. 3d 363, 378 (Fla. 2016)
7
See Ricks v. State, 537 A.2d 612, 620–21 (Md. 1988) (adopting
requirements from federal cases, including minimization and necessity), superseded
by rule on other grounds as recognized in Ragland v. State, 870 A.2d 609, 617 (Md.
2005); People v. Teicher, 422 N.E.2d 506, 514–15 (N.Y. 1981) (“[T]he
constitutional requirements outlined for eavesdropping in [U.S. Supreme Court
cases] … are equally applicable to … video electronic surveillance.”); People v.
Dezek, 308 N.W.2d 652, 657 (Mich. Ct. App. 1981) (sneak-and-peak warrant invalid
where it did not “limit[] the search to ‘precise and discriminate circumstances’ as
required by the [Supreme] Court for warrants authorizing electronic surveillance”).
18
(applying rule to the State). Moreover, “a party may not make or invite error [in the
lower court] and then take advantage of that error on appeal.” Franklin v. State, 275
So. 3d 192, 195 (Fla. 4th DCA 2019) (citation omitted). Here, “[t]he [S]tate invited
th[e supposed] error by” relying on the federal authorities and by arguing that the
nonexistent. See State v. Collazo, 93 So. 3d 417, 419 (Fla. 4th DCA 2012).8
Even setting aside waiver, the State’s argument is meritless. According to the
970 F.2d 536, 542 (9th Cir. 1992) (en banc)—the restrictions imposed on video
surveillance by the federal courts are just a “pretty good idea,” but “none of those
Amendment’s text.” State’s Br. 16. In fact, the federal decisions follow from the
8
The closest the State came to this argument was an evidentiary objection at
the suppression hearing, when it characterized the federal cases as using “guidelines”
rather than a “Title III requirement” translating to video surveillance. R.2496–99,
3233; see R.621–23. Even then, the State did not quarrel with the uniform teaching
that “you have to minimize” as a predicate. R.2497. Its point was that not all aspects
of Title III and surrounding case law have constitutional dimension—and that
Florida courts retain latitude in determining precise contours. By no means was that
an argument for altogether excising minimization and necessity from Fourth
Amendment jurisprudence.
19
Fourth Amendment’s particularity requirement and the rich, longstanding tradition
[courts] apply to video surveillance” are fixtures of decisions predating the Wiretap
Act. Mesa-Rincon, 911 F.2d at 1437, 1439; see United States v. Biasucci, 786 F.2d
504, 510 (2d Cir. 1986). Even before the Wiretap Act, the U.S. Supreme Court
explained that the Fourth Amendment requires “especially great” particularity for
scope.” Berger v. New York, 388 U.S. 41, 56 (1967). The Court condemned an
and “indiscriminate[]” recording “of any and all persons coming into the area
covered by the device … without regard to their connection with the crime under
investigation,” and (2) did not require “some showing of special facts” (i.e.,
necessity). Id. at 55, 58–60. In requiring that a surveillance order itself contain a
minimization directive, Mesa-Rincon, 911 F.2d at 1437, the Courts of Appeals have
simply implemented the constitutional command whereby the “precise limits of the
States, 389 U.S. 347, 356 (1967). As Sharp recognized when applying for the
warrant, federal courts “have not necessarily adopted those Title III requirements
20
that do more than implement constitutional requirements.” R.3259 (emphasis
added). The State has since changed its tune only because it now grasps that it did
Necessity and minimization are not just “pretty good idea[s],” State’s Br. 16,
786 F.2d at 510. The Supreme Court has rejected the State’s “Procrustean” effort to
stymie the Fourth Amendment. Berger, 388 U.S. at 53. Rather than adopt “a
… at the mercy of advancing technology,” the Court has instead “preserv[ed] … that
degree of privacy against government that existed when the Fourth Amendment was
adopted.” Kyllo v. United States, 533 U.S. 27, 34–35 (2001); accord Carpenter, 138
S. Ct. at 2214.9 U.S. Courts of Appeals have followed that instruction by imposing
9
If the State embraces real originalism, it should limit itself to the Framers’
conception of warrants and searches. It would thus eschew any “sneak-and-peek”
warrant involving recurring invasions to generate evidence, quite different from a
discrete seizure of extant evidence or instrumentalities of crime. See, e.g., Berger,
388 U.S. at 59 (“[E]avesdropping for a two-month period is the equivalent of a series
of intrusions, searches, and seizures ….”); Gouled v. United States, 255 U.S. 298,
309 (1921) (“[S]ince the adoption of the Constitution … , [warrants] may not be
used as a means … to secure evidence” but only to seize “instruments” of a crime or
property whose “possession … by the accused [is] unlawful”), overruled by Warden
v. Hayden, 387 U.S. 294 (1967). So long as the State continues to evolve its
21
strict limits on covert video surveillance—a high-tech intrusion that would disquiet
the Framers, and that calls for careful, heightened attention to the Fourth
correctly concluded, “[T]he search warrant does not contain required minimization
guidelines, and th[e] minimization techniques employed in this case did not satisfy
Spa’s employees, “[W]e didn’t minimize at all.” Zhang R.3207 (emphasis added).
“[E]ven though we would like to think [the police] made a good-faith effort, we
know when we didn’t stop recording, that that’s not a good-faith effort . . . .”
Zhang R.3221 (emphasis added). The State can no more shed these concessions
(which pass unmentioned in its brief) than it can shed the minimization requirement.
connection to the crime under investigation who happen to enter an area covered by
a camera.” Mesa-Rincon, 911 F.2d at 1441; cf. Hudson v. State, 368 So. 2d 899, 903
technologies and expand its searches, however, it should abide by the evolving
constraints that preserve Fourth Amendment protections in these contexts.
22
(Fla. 3d DCA 1979). Officers must “conduct the surveillance in such a manner as
to ‘minimize’” such recordings. Scott v. United States, 436 U.S. 128, 140 (1978).
As the County Court correctly found, neither the warrant nor the JPD made a
in nature, i.e. kitchen, bathroom, personal bedrooms.” R.3264. As the County Court
noted, however, this is no limitation at all because “a spa client, whether engaging
in innocent or illegal activity, would not be likely to frequent those three areas.”
hours of operation,” even that meager restriction was left literally blank and illusory.
Such a warrant does not come close to minimizing. In Rodriguez v. State, the
Florida Supreme Court held it did not suffice for the State to discontinue monitoring
one phone line on which it had not intercepted relevant conversations while
recording the other lines “on a twenty-four hour basis each and every day of the
authorized period.” 297 So. 2d 15, 19–20 (Fla. 1974). There was “no indication
that the monitoring agents were given specific directions as to how to effect
minimization, nor any indication that such minimization efforts were made.” Id. at
21. As a result, the Court concluded that the minimization requirement had been
23
“blat[a]ntly ignored” and “the entire wiretap evidence must be suppressed.” Id. So
too here: disavowing monitoring only as to irrelevant places and times is no better
than dispensing with one phone line on which no relevant conversations occur—a
Nor is the warrant saved by limiting the view of the video monitor to the
whatsoever to prevent law enforcement from recording and later viewing the entirety
of the videotape—the most intrusive and dangerous aspect of the entire monitoring
operation. Nor does it restrict those monitoring, who remain free to view the entirety
of the videos whenever and however they wish. To be clear, the monitoring
detectives were perfectly free to watch and record for posterity every single customer
who entered the Spa and undressed to receive a private massage—including those
whether innocent or suspect. As the County Court explained, the warrant neglected
even the most obvious limitation: restricting surveillance of female customers, who
were never suspected of any illegality yet were nonetheless surreptitiously recorded
Because the warrant itself did not come close to satisfying the minimization
requirement, it was invalid ab initio and so was the ensuing search. See United
States v. Scurry, 821 F.3d 1, 7–8 (D.C. Cir. 2016) (a wiretap order that “fails to
24
include information expressly required by Title III,” including a minimization
directive, is “facially insufficient”); cf. Groh v. Ramirez, 540 U.S. 551, 558 (2004)
Even if the warrant were valid, the monitoring detectives failed to minimize
during the surveillance.10 The County Court further found that the detectives, per
20, 3155, 3164–65. One had merely “spoken about minimization” with her husband
sometime “way prior to this.” R.1272. The other did not even think it possible to
turn off a camera remotely. R.1237, 1240. That is why “recording continued around
the clock.” State’s Br. 7. “[S]uch ... continuous recording … tend[s] to show a
failure to minimize.” Rodriguez, 297 S. 2d at 20. As the County Court found, the
detectives also monitored multiple legal massages, including those of female clients.
10
The State cites a wiretap case for the proposition “that minimization is not
a standalone Fourth Amendment requirement,” claiming there were “‘no efforts to
minimize’” in that case. State’s Br. 21–22 (citing Scott, 436 U.S. 128). As explained
supra, no federal court shares the State’s anomalous reading of the Supreme Court’s
1978 Scott decision, where the Court analyzed minimization arguments primarily
against the backdrop of opinions “evaluating alleged violations of the Fourth
Amendment” and emphasized the “Fourth Amendment principles” in play before
turning to statutory contentions. Id. at 137–38. Nor is it accurate to characterize the
Court as concluding that “[p]olice ‘made no efforts’ to minimize.” State’s Br. 21.
The Court there simply paraphrased what “petitioners” “argue,” 436 U.S. at 135,
before holding that the “agents did not act unreasonably” on those facts, id. at 143.
25
R.2062–63.11 The detectives watched female patrons even though no one told them
to do so and Sharp had alleged that only male customers received sexual services.
R.1231, 1256, 1267–69, 1280–81. Moreover, as the County Court also found, the
detectives ignored signals that “should have alerted them that illegal activity was not
likely to occur,” regardless of whether the customer was male or female. R.2100.
Without denying that the JPD recorded every massage (along with all other
activity) for five days straight, State’s Br. 7, the State argues that it somehow did
enough to minimize, State’s Br. 22–30. But the State knows better, as reflected in
its earlier concessions. See Zhang R. 3214, 3221. Its after-the-fact nods at
was likeliest to be occurring.” State’s Br. 25. The State adds that “monitoring did
not occur around the clock, but was limited instead to the Spa’s business hours.”
State’s Br. 28 (emphasis added). But recording is much worse than monitoring,
11
The State’s allusion to “unwarranted gender stereotypes,” State Br. 29, is
totally out of place. Indeed, it is irreconcilable with Sharp’s reliance on categorical
distinctions he drew between male and female customers as basis for his suspicion—
particularly insomuch as he treated the “overwhelmingly (if not exclusively) male
customer clientele” as a hallmark of an illicit “Asian Massage Parlor.” R.3252, 3255,
3258. The State obviously cannot have it both ways: just as its suspicion was
confined to male patrons, so should its monitoring and recording.
26
because it creates a permanent, easy-to-disseminate-yet-difficult-to-protect record,
and the “recording [did] continue[] around the clock.” State’s Br. 7. The State
intercepting all [events] and sorting them out later.” United States v. Simels, 2009
WL 1924746, at *3 (E.D.N.Y. July 2, 2009), aff’d, 654 F.3d 161 (2d Cir. 2011);
accord United States v. Renzi, 722 F. Supp. 2d 1100, 1128 (D. Ariz. 2010).
Whatever the monitors may claim about looking away, the State and its personnel
now have carte blanche over permanent recordings, which they have threatened to
publicize and persons unknown have apparently tried to leak to the media.
The State also argues that limiting the 24-hour recording to just five days was
recording inside private massage rooms for five days straight, or 120 hours. In any
event, separate and apart from the “period of interception,” which may not “be longer
than necessary to achieve the objective of the authorization,” the government within
that period must also “minimize the recording of activities not related to the crimes
under investigation.” Mesa-Rincon, 911 F.2d at 1437; see United States v. North,
735 F.3d 212, 216 (5th Cir. 2013) (suppressing evidence where agents “listen[ed] in
for nearly one hour to a conversation that did not turn to criminal matters until the
last few minutes”). The State has no justification for maintaining video surveillance
for as long as five days, let alone for recording incessantly throughout.
27
The State next resorts to arguing that its failure to minimize did not invade
privacy. Without citing any legal authority, the State asserts that clients had “only a
all or most of their clothes to receive massages. State’s Br. 28. To the contrary,
courts recognize a high expectation of privacy in private massage rooms. See, e.g.,
Harper v. Lindsay, 616 F.2d 849, 855 (5th Cir. 1980) (“[A] customer of a legitimate
massage parlor is likely to expect and demand a reasonable amount of privacy while
he or she is being massaged.”); Myrick v. Bd. of Comm’rs, 677 P.2d 140, 144 (Wash.
1984) (“Few persons, if any, would be willing to have an audience during a full body
five minutes or one hour. State’s Br. 23–24. By the State’s account, watching a
the baby teasing the dog.” State’s Br. 23. That argument is surreal. If forced to
choose between being spied on for five minutes or 60, any reasonable person would
12
Contrary to the State’s position, Florida law recognizes a “person[’s] …
reasonable expectation of privacy” in any “place and time when a reasonable person
would believe that he or she could fully disrobe in privacy, without being concerned
that the person’s undressing was being viewed, recorded, or broadcasted by another,
including, but not limited to, the interior of a residential dwelling, bathroom,
changing room, fitting room, dressing room, or tanning booth.” § 810.145, Fla. Stat.
28
opt for less. Nor would reasonable people prefer to have strangers watch and record
them undress and receive a massage, rather than have them eavesdrop on a
conversation “about moving problems.” State’s Br. 23; see Torres, 751 F.2d at 878
(“[S]ecretly televising people … while they are in what they think is a private place
Finally, the State argues that minimization would have been too difficult.
State’s Br. 24–25. Proper minimization, it hypothesizes, might have caused the
an adequate substitute for minimizing. Cf. Mapp v. Ohio, 367 U.S. 643, 648 (1961).
The whole point of minimization is that police should know what to look for and
zoom in precisely on that. Here, they were purportedly seeking discrete evidence of
proceeds (the only thing not covered by smoking-gun proof and confessions already
in hand). The police could easily have limited themselves to where transactions
were reported to take place (the register), R.2384–85, 2927, or to massages of men,
13
The State spins this as a purportedly “widespread conspiracy” that
necessitated extensive surveillance, State’s Br. 26–27, but the Spa had exactly five
employees, all of whom were known to the JPD, R.3349; cf. United States v. Lilla,
699 F.2d 99, 105 & n.6 (2d Cir. 1983) (the “Government’s argument that this was a
‘far flung … conspiracy[’] … simply [did] not square with common sense” where
“[t]he case appeared to involve a relatively small number of individuals”). Tellingly,
the search warrant application did not refer to any conspiracy, see R.3251–61, nor
has anyone been charged with conspiracy as a result of investigation of the Spa.
29
or, at the very least, to the actual business hours.14 Even assuming they needed to
see the massages for some reason, they attested that they knew that the illicit conduct
typically occurred at the end, contrary to the State’s position on appeal that the police
had no way of knowing when it would occur. R.2505, 2977, 3107, 3145, 3163.
minimize, Mr. Kraft lacks standing. But Mr. Kraft unquestionably has threshold
standing: he was surveilled in a private room at a licensed spa where all therapists
injured and has invoked his Fourth Amendment rights to seek suppression of
question. The State nonetheless seeks to superimpose a new standing hurdle peculiar
to minimization. This hurdle would gut the minimization requirement, cut off
challenges to illegal video surveillance, and eliminate any incentive for officers to
Standing here requires simply that Mr. Kraft “have a cognizable Fourth
Amendment interest in the place searched before seeking relief,” Byrd v. United
States, 138 S. Ct. 1518, 1530 (2018), and have “his own Fourth Amendment rights
14
This case bears no resemblance to one the State cites, State’s Br. 25, where
most of the intercepts were “under two minutes” and the Government did perform
spot checks, see United States v. Mansoori, 304 F.3d 635, 645 (7th Cir. 2002).
30
infringed by the search and seizure which he seeks to challenge,” Rakas v. Illinois,
439 U.S. 128, 133 (1978); accord State v. Suco, 521 So. 2d 1100, 1102 (Fla. 1988).
conduct. State’s Br. 33–36. But “[t]hose whose rights were violated by the search”
have standing to argue suppression. Alderman v. United States, 394 U.S. 165, 171–
72 (1969). Thus, with wiretaps, standing simply requires that the government
Relying on dicta and unpublished cases,15 the State here insists that Mr. Kraft cannot
challenge how it obtained a video of him because he was engaged in allegedly illegal
conduct and would supposedly have been captured regardless. State’s Br. 34–36.
noncompliance with the minimization requirement is, by its very nature, one that
calls for an examination of the totality of the monitoring agents’ conduct during the
duration of the authorized interception.” United States v. Scott, 504 F.2d 194, 197
(D.C. Cir. 1974). The State’s view would “mak[e] any assessment of the overall
15
The State relies on dicta from two published cases, United States v.
Anderson, 39 F.3d 331, 342 (D.C. Cir. 1994), rev’d in part, 59 F.3d 1323 (D.C. Cir.
1995), abrogated by Richardson v. United States, 526 U.S. 813 (1999); United States
v. Willis, 890 F.2d 1099, 1101 n.3 (10th Cir. 1989), and an unpublished case that
may not be cited even as persuasive authority under that court’s rules, United States
v. deLay, 988 F.2d 123 (9th Cir. 1993) (unpublished); see 9th Cir. R. 36-3.
31
reasonableness of the” surveillance “a highly artificial exercise” focused on “an
warranted on the merits, that question differs from threshold standing. Id. at 197 n.5.
requirement, a defendant must “show that the Government failed to minimize third
Suquet, 547 F. Supp. 1034, 1041 (N.D. Ill. 1982). There, a defendant is “relying on
the third party [surveillance] only as evidence.” Id.16 So too here. Mr. Kraft is not
relative to third parties to prove that the warrant and search were invalid as to him.
The “what if” games the State plays in an effort to circumvent minimization
appropriate for the State to posit here what might have happened had it employed
requisite minimization than it would be for the State to posit, after performing a
16
Accord State v. Thompson, 464 A.2d 799, 812 n.21 (Conn. 1983)
(defendants “have standing to contest the state’s failure to minimize its interception
of [third-party] conversations” along with “the overall reasonableness of
minimization procedures”); State v. Catania, 427 A.2d 537, 541 (N.J. 1981)
(refusing to “restrict[] standing to those who were party only to innocent phone
conversations”); Clifford S. Fishman & Anne T. McKenna, Wiretapping and
Eavedropping § 35:54, Westlaw (updated Dec. 2018) (terming this view “correct”).
32
warrantless search, how it might have obtained the requisite warrant. The dispositive
point remains the same: this search, as actually performed, was invalid.17
In any event, contrary to the State’s assertions, State’s Br. 35–36, the failure
to minimize did adversely affect Mr. Kraft. Had the JPD appropriately minimized,
it would not have recorded for multiple days just to capture discrete evidence of
proceeds. Presumably, surveillance would have been confined to the registers where
proceeds would be deposited. See R.2513, 2544, 2968, 3260. The JPD might well
not have surveilled any of Mr. Kraft’s massages, much less two in their entirety.
Correspondingly, the prosecution would have had less tape and thus less leverage
over Mr. Kraft. See R.496–98, 1820–22, 1824–25; cf. R.1800 (Assistant State
Attorney telling the County Court, “Of course, we would release the video.”).
17
To the extent the warrant was facially invalid, R.2097–99, “the search
[w]as ‘warrantless’ [and ‘presumptively unreasonable’].” Groh, 540 U.S. at 558–
59. Thus, Mr. Kraft is not arguing “that certain other people—those who received
lawful massages—were the targets of an illegal search,” State’s Br. 35, but instead
that everyone recorded—including Mr. Kraft—was subjected to an illegal and
essentially warrantless search. Nor can criminal charges change the analysis, for
Fourth Amendment protections “do not hinge on” whether a defendant’s activities
were “innocent or criminal.” McDade v. State, 154 So. 3d 292, 299 (Fla. 2014).
33
they typically sue.18 Most would never even know that the State has embarrassing
recordings of them. Cf. State v. Catania, 427 A.2d 537, 541 (N.J. 1981) (innocent
parties “may never know their call was tapped”). Criminal defendants would have
no incentive to raise minimization objections, and, even if they did, courts would
deem them moot. Under the State’s view of the law, “minimization procedures …
would completely escape judicial scrutiny in many cases,” id. at 541, and incentives
C. Total Suppression Was the Proper Remedy for the State’s Blatant
Disregard of the Minimization Requirement
The State argues that, even if Mr. Kraft has standing, he can obtain
suppression only of videos of innocent third parties. That is wrong. The Florida
Supreme Court has held that, when officers “blat[a]ntly ignore[]” the minimization
297 So. 2d at 21. Under such circumstances, “the surveillance, viewed as a whole,
violates the minimization requirement,” such that all evidence obtained “during that
18
Although the State makes much of a parallel class action by innocent
patrons complaining of the surveillance at issue, State’s Br. 35 & n.4, that aspect of
this litigation is (like other aspects) utterly extraordinary. Nor can such parallel civil
litigation directly deter police overreach as suppression and the exclusionary rule do.
34
WL 1924746, at *14.19 This established principle disposes of this case, considering
Compare Rodriguez, 297 So. 2d at 21, with Zhang R.3207, 3221 (State “didn’t
minimize at all” and its continuous surveillance was “not a good-faith effort”).
The State tries to overcome Rodriguez by claiming that the U.S. Supreme
Court has since rejected the “flagrant disregard” doctrine. State’s Br. 36–37, 38 n.5.
Not so. In Waller v. Georgia, the defendants argued that officers had “flagrantly
disregarded” the warrant because they “unlawfully seized and took away items
unconnected to the prosecution.” 467 U.S. 39, 43 n.3 (1984). The Court, in a
that lawfully seized evidence be suppressed as well.” Id. The Court did not address
the “flagrant disregard” doctrine, let alone its application to covert surveillance. See
id. Notably, just a few years earlier, the Court expressly reserved judgment
“regarding the scope of the suppression remedy in the event of a violation of the
19
See United States v. Turner, 528 F.2d 143, 156 (9th Cir. 1975) (“In a case
where it is clear that the minimization provision of the order was disregarded by the
Government throughout the period covered by the order, a total suppression might
well be appropriate.”); Simels, 2009 WL 1924746, at *8–9, *15 (suppressing all
evidence where the Government “[a]utomatically recorded everything,” including
“meetings that lasted ‘a number of hours,’ which apparently included … only ‘a few
minutes’ of allegedly pertinent communications”); United States v. Cleveland, 964
F. Supp. 1073, 1092 (E.D. La. 1997) (total suppression is warranted “where the
government has made effectively no efforts towards minimization whatsoever”).
35
minimization requirement.” Scott, 436 U.S. at 135 n.10. Considering that Waller
The State’s effort to stave off the suppression remedy is just another way to
parties “affords the defendant no real remedy” and “strips the minimization
provision of any deterrent effect it might have.” Clifford S. Fishman & Anne T.
20
The few appellate cases cited by the State involved physical searches, and
two do not even reject the “flagrant disregard doctrine.” See United States v. Willey,
57 F.3d 1374, 1390 (5th Cir. 1995) (“This Court has not adopted the flagrant
disregard exception,” and “the evidence does not compel the conclusion that there
was a flagrant disregard”); United States v. Buckley, 4 F.3d 552, 557 (7th Cir. 1993)
(“[T]he items seized were within the scope of the warrant” and defendants did not
contest that some items so qualified); Klingenstein v. State, 624 A.2d 532, 534 (Md.
1993). Nor do the federal wiretap cases cited by the State reject total suppression
when officers “blatantly ignore” minimization. See United States v. Gaytan, 74 F.3d
545, 554 (5th Cir. 1996) (“clerical error” in warrant and government screened and
terminated irrelevant calls); United States v. Principie, 531 F.2d 1132, 1141 (2d Cir.
1976) (in “unique” case, court was “less inclined to use the drastic remedy of [total]
suppress[ion] … than [it] might be in the case of the usual minimization order”);
United States v. Cox, 462 F.2d 1293, 1300–01 (8th Cir. 1972) (defendants used code
and judge closely supervised wiretap). The State cites only one decision holding
that total suppression was not warranted for a failure to minimize, State v. Monsrud,
337 N.W.2d 652, 660–61 (Minn. 1983), which left open the prospect of total
suppression in cases of “flagrant[] disregard[],” id. at 662 (Simonett, J, concurring).
36
will a defendant who has nothing to gain from minimization raise the issue. Police
face no consequence beyond the loss of irrelevant evidence. Stated plainly, the
State’s arguments here are a recipe for shedding the minimization requirement and
State’s Br. 33, 43, 45. By elevating the good-faith exception over the exclusionary
rule, however, the State mistakes the exception for the rule. The exception remains
properly reserved for those cases where a technical defect becomes apparent only
after the fact, such that “a reasonably well trained officer” acted “in objectively
468 U.S. 897, 922 & n.23 (1984). Officers nevertheless have “a duty to ensure that
the warrant conforms to constitutional requirements.” Groh, 540 U.S. at 563 n.6.21
“Given that the particularity requirement is set forth in the text of the Constitution,
no reasonable officer could believe that a warrant that plainly did not comply with
that requirement was valid.” Id. at 563. Thus, where a warrant “fail[s] to
21
Although Groh was a civil suit under 42 U.S.C. § 1983, “the same standard
of objective reasonableness that … applied in the context of a suppression hearing
in Leon defines the qualified immunity accorded an officer.” 540 U.S. at 565 n.8.
37
particularize the place to be searched or the things to be seized,” an officer “cannot
This is a textbook case where, to quote the State, there was “not a good-faith
requirement in the context of electronic surveillance. See Torres, 751 F.2d at 884;
Biasucci, 786 F.2d at 510. That state of the law should come as no surprise to Sharp,
who expressly attested in his application that he had “strongly considered” the
Sharp was well aware of the constitutional requirements he was violating or else he
was misleading the judge, but in no event can he claim the good-faith exception.
Not only has the State conceded that there was no good-faith effort to minimize, but
the warrant, on its face, left altogether blank even the called-for limitation within
specified business hours. R.3264; cf. Groh, 540 U.S. at 558, 563–65 (not good faith
to rely on a warrant that left blank the space for a description of items to be seized).
excluded because the State failed to satisfy the necessity requirement. The County
38
investigative techniques would not succeed. R.2097. To the contrary, however,
evidence proves that such techniques had succeeded, just as they routinely succeed
procedures have been tried and failed or … reasonably appear unlikely to succeed if
tried or to be too dangerous.” Mesa-Rincon, 911 F.2d at 1442; accord Falls, 34 F.3d
at 680; Biasucci, 786 F.2d at 510–11. This ensures surveillance “is not resorted to
crime.” United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). Nor can “mere
United States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995) (cleaned up) (citation
omitted). Police must “show with specificity why in this particular investigation
ordinary means of investigation will fail.” United States v. Ippolito, 774 F.2d 1482,
1486 (9th Cir. 1985) (citation omitted); accord Zuppardi v. State, 367 So. 2d 601,
604 (Fla. 1978). The burden of showing necessity to videotape “is higher than the
showing needed to justify other search and seizure methods, including bugging,”
Mesa-Rincon, 911 F.2d at 1442, and the bar rises with the expectation of privacy in
the premises surveilled, see id. at 1443; Torres, 751 F.2d at 882; cf. State v. Butler,
39
1 So. 3d 242, 247 (Fla. 1st DCA 2008) (“The more private the treatment space, the
The State did not come close to showing it needed to inject dragnet video
that the State had already proved was occurring. The massage rooms were
completely private, separated by walls and doors from the Spa’s public areas. Their
purpose was to reassure clients that they would be seen by one and one person only
Florida and beyond have uniformly recognized the privacy of massage rooms and
similar spaces.22 The burden to establish necessity was therefore exceptionally high.
The State’s entire theory of necessity, State’s Br. 43–44, falls apart upon
considering that the application claimed need only to turn up evidence of proceeds,
after police had already obtained smoking-gun proof of prostitution. See Lilla, 699
22
See Harper, 616 F.2d at 855 (“[A] customer of a legitimate massage parlor
is likely to expect and demand a reasonable amount of privacy while he or she is
being massaged.”); Myrick, 677 P.2d at 144 (“Few persons, if any, would be willing
to have an audience during a full body massage, however innocent and legitimate.”);
cf. Horning-Keating v. State, 777 So. 2d 438, 448 (Fla. 5th DCA 2001) (Florida
recognizes “[t]he privacy of a dressing room in a commercial business”); Ramirez v.
State, 654 So. 2d 1222, 1223 (Fla. 2d DCA 1995) (there is “a legitimate expectation
of privacy” in an “enclosed toilet stall”); Bernhard v. City of Ontario, 270 F. App’x
518, 519 (9th Cir. 2008) (locker room where officers “chang[ed] clothes, us[ed] the
bathroom, and shower[ed]” “deserve[d] the most scrupulous protection from
government invasion”); Brannum, 516 F.3d at 496 (“[I]n locker rooms, students
retain ‘a significant privacy interest in their unclothed bodies.’” (citation omitted)).
40
F.2d at 104 (no necessity where “the normal investigative procedures that were used
were successful”); cf. Ippolito, 774 F.2d at 1486–87 (no necessity where “an
informer … [is] both willing to testify and ha[s] great potential for uncovering the
entirety of the conspiracy”). Again, Sharp represented that he was investigating the
R.3252. As Sharp himself spelled out, the JPD already had everything it might need
to prove prostitution at the Spa. It had confessions from four patrons. R.3256–58.
It also had physical evidence, including plastic bags containing discarded napkins
with seminal fluid (as pulled from the Spa’s trash bin). R.3256. Standard techniques
not only could work, but actually had worked to prove the prostitution case.
The State’s sole fig leaf for its eye-popping surveillance campaign was, per
the warrant application, that it still needed to prove that the Spa’s owners and
employees were deriving support from the proceeds of prostitution. R.3252, 3259.
If so, police should have been looking to prove that the Spa’s principals and
personnel were receiving income and support from the Spa’s revenues (the alleged
hour reports, paychecks, tax and bank records, other financial documents, and public
records of home, car, and other property ownership. All these documents were
41
such attempt, nor did it offer any clue why such tried-and-true, cost-effective
Even assuming arguendo that the State somehow needed video evidence
(contrary to the record and reason itself), videos of the private massages were not
relevant to the deriving-support element. Rather, only videos at the register (or
elsewhere in the Spa) would capture where and how payments were being processed,
deposited, and used. The only thing videos of the private massage rooms captured
was the prostitution that the State had already proved. Tellingly, the State in its
was necessary—or even helpful—to prove that the Spa’s employees were deriving
support from the prostitution already known to be occurring. See State’s Br. 44.
Finally, and relatedly, although the State need not “explain why all
methods would not work.” Mesa-Rincon, 911 F.2d at 1444; see United States v.
Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005). Sharp’s boilerplate application
came nowhere close, as confirmed by the fact that he simply copied and pasted those
28, 1705–06, 3258–59. The Florida Supreme Court and others have repeatedly
42
disapproved of such “mere boilerplate recitation” because it does not show necessity
under the facts of particular cases. Zuppardi, 367 So. 2d at 604; accord United
States v. Blackmon, 273 F.3d 1204, 1210 (9th Cir. 2001); Lilla, 699 F.2d at 104–05.
Here, the claim of necessity relied on generic statements about what happens
the empirical reality that standard investigative techniques work just fine for this
type of investigation, R.3258–59,23 including this one, where Sharp had not only
made his prostitution case but sent an undercover officer into the Spa to get a
Holding that necessity existed here would reduce the necessity requirement to
a paper tiger—one overcome just by copying and pasting the same boilerplate Sharp
did in the warrant application. Covert electronic surveillance would become part of
the standard playbook for law enforcement in Florida, available to serve mere
23
See, e.g., State v. Regalada, 2017 WL 4247043, at *1 (N.J. App. Div. Sept.
26, 2017) (prostitution conviction “stemmed from an undercover investigation” into
a “massage parlor,” with officers posing as clients); State v. Song, 748 P.2d 273, 274
(Wash. 1988) (massage parlor owner “agree[d] on two separate occasions to hire,
for purposes of prostitution, undercover police officers”); People v. Xuan, 2011 WL
1515058, *1 (N.Y. Cty. Ct. Apr. 18, 2011) (masseuse “offered to manipulate the
[undercover] officer’s genital area”); Zhang v. State, 2010 WL 2220603, at *1 (Tex.
Ct. App. June 3, 2010) (undercover officers solicited sexual services).
43
the citizenry’s legitimate expectation of privacy. See, e.g., United States v. Giordano,
416 U.S. 505, 515 (1974) (necessity requirement ensures electronic surveillance is
Nor might the good-faith exception excuse this deficiency. Sharp had every
reason to know his stated rationale did not compute: he had already proved a
prostitution case; any proceeds case depended on proof well removed from patrons
disrobing in private massage rooms; and his claimed investigative experience and
insight was out of step with reality. See infra Section II.
comprise ‘probable cause,’” but “a truthful showing.” Johnson v. State, 660 So. 2d
648, 655 (Fla. 1995) (quoting Franks v. Delaware, 438 U.S. 154, 164 (1978)). “If
an affidavit for search warrant contains intentional [or reckless falsehoods], the trial
court must excise the false material and consider whether the affidavit’s remaining
content is sufficient ….” Thorp v. State, 777 So. 2d 385, 391 (Fla. 2000). The same
holds for omissions that “would have defeated probable cause.” See id. If the
warrant could not otherwise have issued, then “the search warrant must be voided
and the evidence seized as a result of the search excluded.” Id. at 391. 24 This
24
Nor can the good-faith exception apply if an issuing judge “was misled by
information in an affidavit that the affiant knew was false or would have known was
44
framework extends to warrants for electronic surveillance. See, e.g., United States
v. Lambus, 897 F.3d 368, 397 (2d Cir. 2018); Ippolito, 774 F.2d at 1485.
organizations.” R.3258. That was false: Sharp had no such specialized training,
R.2442–44, and this was his very first prostitution investigation, R.2443. While
constraints, R.3259–60, he was “100% clear” that he had never read them, R.2459.
affirmations which are founded in part upon the experience of specially trained
agents.” Williams, 124 F.3d at 418 (Alito, J.) (citation omitted). By claiming
specialized knowledge, Sharp swayed the issuing judge towards deferring to his
Sharp Falsely Claimed That Only Males Entered the Spa. Sharp also falsely
implied that he had observed only men patronizing the Spa, R.3252, 3255, 3258,
false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923; accord
Thorp, 777 So. 2d at 394 n.11.
45
despite knowing otherwise, as he later admitted at the suppression hearing. R.2357,
misrepresenting that he saw only male patrons and omitting the females he saw,
Sharp led the issuing judge to believe that the Spa bore what Sharp claimed to be the
exact hallmark of an illegal massage parlor. R.2352–53. That Sharp had observed
women amidst the supposedly men-only clientele “was the kind of thing the judge
would wish to know,” Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000) (citation
omitted), especially given that it stood to highlight the “seriously flaw[ed]” approach
trafficking conspiracy (the false narrative that the chief of the JPD and State Attorney
25
Nor did Sharp disclose that the sole purpose of the inspection was to gather
evidence for a criminal investigation. See R.2527–32, 2674–75, 2688–89, 3255.
The “routine” administrative inspection amounted to an illegal, warrantless search.
See Bruce v. Beary, 498 F.3d 1232, 1239 (11th Cir. 2007) (quoting City of
Indianapolis v. Edmond, 531 U.S. 32, 37 (2000)).
46
claiming Herzog reported “the female employees were living [at the Spa]”); R.3259
and/or their families from abuse.”). But Herzog’s inspection uncovered no evidence
Spa’s employees were all middle-aged women with valid licenses, R.2694–96, 2717,
reporting that no one was living at the Spa, R.3353, Herzog did not alter her account
until two and a half months after her inspection. R.2734–35, 2743–45, 2820–22.
Even as of the suppression hearing, Herzog could not explain why she was asked to
change her report months after submitting it. R.2824–26. And every prior DOH
inspection of the Spa indicated no one was living there. R.2814–19, 3362–68.
III. Florida Statutory Law Does Not Permit the Use of Covert Video
Surveillance to Investigate Any Prostitution Offenses
Even setting aside the State’s flagrant Fourth Amendment violations, this
Court may also affirm on statutory grounds to avoid “reach[ing] the constitutional
question[s].” Delacruz v. State, 276 So. 3d 21, 26 n.1 (Fla. 4th DCA 2019).
construed, and the issuance of search warrants and searches conducted pursuant
thereto must strictly conform to such statutory provisions.” Morris v. State, 622 So.
2d 67, 68 (Fla. 4th DCA 1993); accord State v. Geiss, 70 So. 3d 642, 650 (Fla. 5th
47
DCA 2011); State v. Hill, 980 So. 2d 1181, 1182 (Fla. 4th DCA 2008). No Florida
statute authorizes surreptitious video surveillance, nor have Florida courts approved
it. See R.2095 (noting “dearth of Florida cases offering guidance”). When applying
for the warrant, all the JPD cited as authority was Chapter 934. R.3260. And the
State below relied upon “F.S.S. Chapter 934 for the purpose of demonstrating …
that there is a precedent for delayed notice search warrants ….” R.615.
Yet Chapter 934 did not authorize this surveillance to investigate this offense:
deriving support from the proceeds of prostitution. See § 934.07(1)(a), Fla. Stat.
After Florida’s Legislature expressly limited surveillance “to certain major types of
offenses and specific categories of crime,” id. § 934.01(4), Florida’s Supreme Court
federal wiretap law, State v. Rivers, 660 So. 2d 1360, 1363 (Fla. 1995) (emphasis
section 934.07. Ch. 2000-369, § 10, at 8, Laws of Fla. Removal of those offenses
are not “major types of offenses” warranting the significant intrusion of audio—and,
when the warrant issued, the “crimes specifically enumerated” in section 934.07(1)(a)
48
excluded deriving support from the proceeds of prostitution or any of Chapter 796,
The JPD did not “strictly conform to [the] statutory provisions,” Morris, 622
So. 2d at 68, insomuch as its claimed statutory authorization does not authorize
2000-369, § 10, at 8, Laws of Fla; Rivers, 660 So. 2d at 1363—the only offense
Amendment, State’s Br. 14–15, the State plays fast and loose to conjure its supposed
authorization for covert video surveillance, State’s Br. 40–42. Although the State
now grasps for § 933.02, that provision’s “plain text” simply authorizes issuance of
a search warrant “[w]hen any property shall have been used: … [a]s a means to
commit any crime,” § 933.02(2)(a); it thus speaks to “grounds for issuance,” without
The State then embraces the very federal cases it tries to repudiate upon
reaching the constitutional analysis. See State’s Br. 40–41. But the federal rule
specifies what the government may search and seize, Fed. R. Crim. P. 41(c), not
grounds or modes of surveillance, § 933.02, Fla. Stat. Moreover, the U.S. Supreme
Court has held that federal “Rule 41 ‘is sufficiently flexible to include within its
49
The Florida Supreme Court, in contrast, requires that “statutes authorizing searches
… be strictly construed” and that the State “strictly conform to such statutory
provisions.” Morris, 622 So. 2d at 68 (emphasis added); see State ex rel. Wilson v.
Quigg, 17 So. 2d 697, 701 (Fla. 1944). That instruction is emphatic, and it controls.
Nor can any good-faith exception save the State’s violation of Florida law.
“The prohibition of [Chapter 934 is] … absolute,” Atkins v. State, 930 So. 2d 678,
681 (Fla. 4th DCA 2006), and “unequivocally expresses the Legislature’s desire to
suppress evidence obtained in violation of that chapter,” State v. Garcia, 547 So. 2d
628, 630 (Fla. 1989). Moreover, good faith cannot be claimed consistent with
Because Florida law simply does not authorize covert video surveillance to
CONCLUSION
For the foregoing reasons, Mr. Kraft respectfully requests that this Court
50
Respectfully submitted,
GRAYROBINSON, P.A.
[email protected]
[email protected]
[email protected]
1300 I Street NW, Suite 900
Washington, D.C. 20005
(202) 538-8000
[email protected]
51 Madison Avenue, 22nd Floor
New York, NY 10010
(212) 849-7000
51
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