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  • An illegal search warrant significantly weakened the case against Robert Kraft, leading to a possible dismissal.
By Michael McCann
May 13, 2019

Robert Kraft won’t be picking up litter on a Florida highway or attending an education course on the dangers of prostitution anytime soon.

On Monday, Judge Leonard Hanser of the Palm Beach County Court granted a motion to suppress videos and any other evidence obtained pursuant to a search warrant of the New England Patriots owner while he was in the Orchids of Asia Day Spa in Jupiter, Fla. on Jan. 19 and Jan. 20.

Although prosecutors can continue to prosecute Kraft on two counts of first-degree misdemeanor solicitation in violation of Florida Statute 796.07, and although they can appeal Judge Hanser’s ruling to an appellate court, the reality is that prosecutors will struggle to pursue the case without the admissibility of evidence obtained through the warrant. Kraft’s attorneys will surely seek to have the case dismissed on grounds that any remaining admissible evidence is legally insufficient to warrant a conviction. Further, an appeal would likely face difficult odds given the sound reasoning offered by Judge Hanser.

Kraft has not contested that he partook in sexual incidents with women employed by the spa. In March, he publicly apologized for those acts. Yet Kraft and his high-profile legal team—led by attorneys Jack Goldberger, William Burck and Alex Spiro—have vehemently insisted that the recordings were part of an illegal sting operation that violated his Constitutional rights.

Kraft was also infuriated by the conduct of the Jupiter Police Department and the Palm Beach County State Attorney’s Office. Particularly when Kraft was initially charged in February, officials from those offices insinuated that the 77-year-old billionaire was somehow connected to a human trafficking and sex trade ring.  A supposed association between Kraft and the alleged ring played an instrumental role in a relatively low-level offense (Kraft was charged with misdemeanors that are normally resolved by paying a fine and performing community service) transforming into a national news controversy covered by all of the major networks.

As it turned out, no one—not even the spa’s owners—has been charged with trafficking. Meanwhile, law enforcement has conceded that no such charges are expected.

Why Kraft won the motion to suppress videos and why the case against him has likely collapsed

The simplest explanation for Kraft’s victory is that Judge Hanser found the search warrant used to investigate him to be illegal. Reading between the lines of Judge Hanser’s order, it’s also clear that this University of Florida and UVA Law grad found the videotaping of naked spa customers to be invasive, voyeuristic and gross.

Kraft and his legal team have maintained that the search warrant used to record him violated his Fourth Amendment right against unreasonable searches. In order for the government to lawfully search someone, or surreptitiously monitor someone while he or she has a reasonable expectation of privacy, there must “probable cause”—a reasonable belief—that the person is partaking in a crime. 

Here, law enforcement relied on visual observations of men who had entered the spa as well as searches of nearby dumpsters to conclude that widespread prostitution, money laundering and possible human sex trafficking were all present. Kraft was one of the hundreds of men seen entering one of the spas targeted by law enforcement.

Police officers obtained a search warrant to install five hidden cameras inside the Orchids of Asia Day Spa. They invented a fake bomb threat as a ruse to direct spa employees and customers out of the building. Then, without anyone watching, the officers installed the five cameras. Four of those cameras were placed in massage rooms where customers disrobed. The cameras, which did not record sound, recorded continuously for five straight days, including the two days when Kraft visited. The cameras also recorded spa customers, including at least one woman, undressed while lawfully obtaining massage services.

Prosecutors have been confident in the admissibility of the Kraft videos. One key reason is that the 2001 USA Patriot Act normally authorizes the use of “sneak-and-peek” warrants. Such warrants occur where law enforcement creates a ruse to install hidden cameras. Here, the fake bomb threat served as a ruse.

Judge Hanser was not persuaded by the prosecutors’ contentions. This is particularly so in light of the absence of steps used by police officers to minimize the invasiveness of the spa recordings.

Although Judge Hanser stressed that Kraft has the strongest claim for privacy while he is at home, Kraft also has a compelling expectation for privacy while a customer of a private massage establishment. “Seeking even legitimate services in a spa,” the judge writes, “normally involves removing all or most of a person’s clothing—behavior almost as private as would occur in a home.”

Judge Hanser also chastised law enforcement for failing to minimize the impact of the search warrant on innocent persons. For instance, the warrant doesn’t indicate when the recordings were supposed to start and stop. The taping simply went on without any sense as to when it would be appropriate to take a break. Customers who received bona fide massages and not any sexual services were recorded naked. These compromising recordings have been stored on government servers.

Judge Hanser also took offense to the fact that the warrant used to record Kraft jeopardized the rights of the spa’s women customers. “The Spa,” Judge Hanser notes, “advertised services for women clients and, in fact, more than one woman had a significant portion of her Spa time viewed by a detective-monitor and the entirety of her spa time recorded and placed in Jupiter Police Department records.”  As Judge Hanser alludes, the search warrant would have been more defensible if the recordings had stopped when women clients entered the private rooms.

Worse yet for prosecutors, they can’t rely on the traffic stop of Kraft as evidence. On Jan. 19, officers stopped a blue Bentley in which Kraft was a passenger. During the stop, Kraft provided information about his identity. Judge Hanser’s ruling makes clear that since Kraft was followed by officers after he left the spa, he was stopped pursuant to the (now illegal) search warrant. “All information obtained through the stop,” Judge Hanser insists “is suppressed as the fruit of an unlawful search.”

Judge Hanser’s order does not express whether prosecutors can rely on any testimony offered by the women with whom Kraft had sexual relations. There is an argument that testimony taken in connection with the search warrant ought to be deemed inadmissible since it flowed from a warrant that has been deemed illegal. However, it’s possible the women could still testify in future proceedings. Whether their recollections of events from January would be sufficiently accurate and believable to prove, beyond a reasonable doubt, that Kraft paid them for sexual acts is unknown.

The videos could still be released—lawfully or unlawfully

Kraft is undoubtedly thrilled by Judge Hanser’s ruling and the increasing likelihood that he will avoid a finding that he broke any laws. Still, there remains a real possibility that the videos eventually surface on the Internet. Whether an appearance of those videos on websites happens in a matter of days, months or years is unknown and probably unknowable.

For now, the videos are sealed pursuant to an order last week by Judge Joseph Marx of the Palm Beach County Court. Judge Marx is overseeing the case of Hua Zhang, who faces 26 charges, including felonies, for allegedly masterminding the multi-spa prostitution ring. Aware that media companies, including the Associated Press and ESPN, actively seek access to the videos of implicated men (including of course Kraft), Judge Marx has hit the pause button on any disclosures. The order is subject to appeal. Media companies insist that the First Amendment and Florida case precedent—which instructs that once evidence is shared with defendants, it normally can’t be withheld from the public—will eventually compel the release of the videos.

Aside from the risk of official disclosure, there is the ever-present risk of an unlawful disclosure. Even with the most skilled attorneys at his disposal, Kraft will likely not be able to extinguish that risk. The number of people who work for the town of Jupiter and state of Florida who have seen, or could see, the videos is probably a considerable figure. As digital files, the videos can also be easily shared and replicated. Numerous copies of those digital files might be in existence.

The idea of watching Kraft naked and partaking in sexual acts is (hopefully) not appealing to the public. Yet mainstream news organizations nonetheless seek those videos and have gone so far as to sue to gain access to them—a point that suggests the videos are newsworthy and regarded by news organizations as sources of profit. Further, it stands to reason that tabloid publications would offer a hefty sum of money to obtain the videos, if for no other reason than to earn revenue by shaming Kraft and, by extension, the six-time Super Bowl champion Patriots—arguably the most hated dynasty in American sports.

Also, as I explained in a prior The MMQB story, sex tapes involving famous persons have historically attracted millions of viewers and created lucrative advertising opportunities for those in possession of the videos. This dynamic has even proven true of sex tapes involving older celebrities, including videos of Hulk Hogan and Gene Simmons while in their 50s.

Lastly, Gary Trock and Mike Walters of The Blast recently reported that their publication has been offered one of the Kraft videos by an unnamed party which is trying to sell it.

The looming threat: Roger Goodell

It appears that Kraft will prevail in the court of law. The court of Roger Goodell—as Tom Brady could tell Kraft—is a different creature. It is not always predictable or, critics would charge, fair.

It’s clear that Goodell, as the NFL’s commissioner, has the legal authority to punish Kraft under both the league’s personal conduct policy and the league’s constitution. Neither legal document requires that Kraft break any law in order for Goodell to lawfully issue a sanction. Instead, Goodell merely has to conclude that Kraft engaged in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” This language is highly interpretative and accords Goodell wide discretion in assessing what counts as “conduct detrimental” and any appropriate punishment.

As owner of an NFL franchise, Kraft also contractually assents to the commissioner possessing this discretion. Stated differently, if Goodell punishes Kraft, the punishment will not become the source of a lawsuit. Kraft will accept it and move on.

Working in Kraft’s favor is that the criminal case against him has likely collapsed and thus the odds of him being convicted have plummeted. Kraft can credibly argue that he broke no laws. One might object to that characterization and insist that Kraft is merely a fortuitous beneficiary of high-priced attorneys who uncovered a technicality. That argument isn’t correct. Kraft, as Judge Hanser detailed, has certain privacy rights as an American citizen and those rights were violated by the government. While Kraft was no doubt aided by a skilled legal team, the legal conclusion remains that he shouldn’t have been videotaped.

Kraft’s situation is thus unlike that of Indianapolis Colts owner Jim Irsay, who five years ago pleaded guilty to a misdemeanor charge for operating a vehicle while under the influence. Goodell responded to Irsay’s plea deal by suspending him for six games and fining him $500,000. Kraft, in contrast, will most likely see his case dropped, dismissed or defeated. Also, one might argue that driving while intoxicated is a far more serious offense that paying for sexual services given that impaired drivers can kill or maim other people, not to mention themselves.

Working against Kraft is that he has already apologized for engaging in sexual acts that he regrets and that have embarrassed him. This is not a situation where prosecutors wrongly identified Kraft as the older man in the massage room. It was him. Also, police officers’ written depictions of the videos indicate that Kraft paid for sexual services, including when one woman “manipulated Kraft’s penis and testicles and then put her head down by his penis” for a period of several minutes. Even though Kraft will likely avoid a conviction of solicitation, the act itself is illegal in 49 states (Nevada licenses brothels in limited areas). Numerous commentators have described prostitution as demeaning of women and as worsening hurtful stereotypes of women of color.

To that point, Goodell might reason that Kraft should be punished on account of admitting to acts that may be offensive to NFL constituencies, including its sponsors and broadcasters. Goodell is also mindful that he issued a steep punishment of former Carolina Panthers owner Jerry Richardson in the aftermath of Jon Wertheim and Viv Bernstein’s Sports Illustrated 2017 investigative report. They found that Richardson had engaged in sexual harassment, among other infractions, while owner of the Panthers. Goodell fined Richardson $2.75 million and, by all accounts, encouraged if not urged Richardson to sell the team.

The Irsay and Richardson punishments seem more severe than any Kraft would logically face. The criminal case against Kraft has suffered a major defeat and Kraft is not accused of any kind of misconduct with his employees. His offense is often viewed more as a sin than a “crime” and, when it leads to a criminal consequence, is normally resolved through payment of a modest fine. If Goodell punishes Kraft, the most likely punishment, in my view, would be a fine.

There is one wild card. If the videos are made public and “go viral,” Goodell could reason that Kraft’s actions have caused greater embarrassment to the league and thus warrant a higher punishment. Even then, however, I’m skeptical that a viral video would lead Goodell to severely punish Kraft. It might lead to a higher fine or perhaps a brief suspension, but not much more.

Goodell could also learn from his counterpart at the NBA, commissioner Adam Silver. Silver punished Dallas Mavericks owner Mark Cuban last year for workplace misconduct by convincing Cuban to donate $10 million to organizations that, among other things, promote women in leadership roles. Perhaps Kraft would agree to make a similar donation to organizations that combat prostitution. A donation along those lines would seem much more socially relevant than imposing a symbolic “suspension” on an owner who doesn’t play, coach or make personnel decisions.

Michael McCann is SI’s legal analyst. He is also an attorney and founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

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