FL4: Surreptitious video surveillance in Kraft spa case was unreasonable for lack of minimization

The warranted video surveillance of the spa in the Kraft case was unreasonable for lack of minimization to protect privacy. The law on surreptitious surveillance and minimization is well settled. “The type of law enforcement surveillance utilized in these cases is extreme. While there will be situations which may warrant the use of the techniques at issue, the strict Fourth Amendment safeguards developed over the past few decades must be observed.” The videos were suppressed. State v. Kraft, 2020 Fla. App. LEXIS 11788 (Fla. 4th DCA Aug. 19, 2020):

These laws clearly undermine the state’s argument that the defendants lacked standing because they had, at most, a diminished expectation of privacy in a business open to the public. As is long settled, “[t]he Fourth Amendment protects people, not places.” Katz, 389 U.S. at 351 (rejecting the “trespass doctrine” espoused in past cases like Olmstead v. United States, 277 U.S. 438, 464 (1928), which had limited the Fourth Amendment to searches and seizures of tangible property, and holding that attaching a listening device to the outside of a public phone booth was a search that violated the Fourth Amendment).

The state also argues that the spas were primarily used as a brothel, as most of the customers who were recorded and monitored engaged in unlawful activity, and thus, the state asserts, the defendants cannot rely on the Fourth Amendment rights of third parties who had their innocent conduct recorded. However, as case law shows us, Fourth Amendment rights are nearly always safeguarded by those who are criminally prosecuted. See, e.g., Katz, 389 U.S. at 348 (reversing judgment of conviction for transmitting wagering information by telephone).

Consequently, the state’s circular argument that the defendants lacked a privacy interest because they were engaging in criminal behavior is uncompelling.

The trial courts properly concluded that the defendants had standing to challenge the search.

B. Minimization Requirements are Applicable to the Surveillance at Hand, and the Requirements were not Properly Defined or Applied

The state next argues that the trial courts erred in determining that adequate minimization procedures were neither defined nor applied because there are no minimization requirements within the text of the Fourth Amendment.

The act of video surveillance itself is perhaps the most intrusive form of electronic law enforcement spying. As the Tenth Circuit held: “The use of a video camera is an extraordinarily intrusive method of searching.” United States v. Mesa-Rincon, 911 F.2d 1433, 1442 (10th Cir. 1990). “Television surveillance is identical in its indiscriminate character to wiretapping and bugging. [However,] [i]t is even more invasive of privacy, just as a strip search is more invasive than a pat-down search ….” Id. at 1442-43 (alterations and emphasis in original) (quoting United States v. Torres, 751 F.2d 875, 885 (7th Cir. 1984)).

Presently there exists no binding Florida statute, Florida decisional law, or rule of criminal procedure that addresses this type of surreptitious, video-only surveillance as a law enforcement investigative tool. Likewise, the text of the Fourth Amendment does not expressly reference the term “minimization.” As a result of that void, the state maintains that this court need look no further than the plain text of the Fourth Amendment’s Warrant Clause “because the existing probable cause and particularity requirements [of the Warrant Clause] amply safeguard protected privacy interests.” However, the state’s argument ignores many years of clear federal jurisprudence on this issue.

“[G]eneral fourth amendment requirements are still applicable to video surveillance; and suppression is required when the government fails to follow these requirements.” Mesa-Rincon, 911 F.2d at 1437. In Mesa-Rincon, the Tenth Circuit rejected arguments that the district court lacked authority to authorize a search via silent video surveillance and that the warrant application did not satisfy Fourth Amendment requirements. Id. at 1446. In consideration of “the underlying purposes of the fourth amendment and the intrusiveness of video surveillance,” the Tenth Circuit adopted “five requirements for video surveillance that define more specifically the probable cause and particularity requirements of the fourth amendment,” and which requirements expressly include the minimization requirement: ….

The test derives from U.S. Supreme Court case law setting forth “the minimum constitutional standards” for secret audio surveillance. United States v. Biasucci, 786 F.2d 504, 510 (2d Cir. 1986) (applying the minimum constitutional standards required for audio surveillance set out in Katz, 389 U.S. at 354–59, and Berger v. New York, 388 U.S. 41, 58-59 (1967), to video surveillance). “Given the obvious similarities between aural and video electronic surveillance, we believe that the same constitutional standards governing the former should be applied in determining whether or not to authorize the latter.” Biasucci, 786 F.2d at 510. The Mesa-Rincon formulation of the test has been expressly adopted and applied by other federal circuit courts of appeal. …

Notably, the warrant applications in the cases now on appeal cited Mesa-Rincon and sought to comply with its requirements.

We likewise uphold the trial courts’ conclusions that the warrants failed to contain sufficient minimization guidelines and that police did not sufficiently minimize the video recording of innocent spa goers receiving lawful massages. “The purpose of the minimization requirement is to avoid the recording of activity by persons with no connection to the crime under investigation who happen to enter an area covered by a camera.” Mesa-Rincon, 911 F.2d at 1441. “The minimization question is one of reasonableness.” Id. (quoting United States v. Apodaca, 820 F.2d 348, 350 (10th Cir. 1987)).

The warrants at issue did not set forth any specific written parameters to minimize the recording of innocent massage seekers, and law enforcement did not actually employ sufficient minimization techniques when monitoring the video or deciding what to record. In all the investigations, some innocent spa goers were video recorded and monitored undressed. There was no suggestion or probable cause to believe that female spa clients were receiving sexual services, yet law enforcement largely failed to take the most reasonable, basic, and obvious minimization technique, which was simply to not monitor or record female spa clients.

IV. Conclusion

The type of law enforcement surveillance utilized in these cases is extreme. While there will be situations which may warrant the use of the techniques at issue, the strict Fourth Amendment safeguards developed over the past few decades must be observed. If they are not, any evidence obtained could very well be declared inadmissible as a matter of constitutional law. To permit otherwise would yield unbridled discretion to agents of law enforcement and the government, the antithesis of the constitutional liberty of people to be secure against unreasonable searches and seizures.

The federal case law cited herein pertaining to silent video surveillance is well reasoned and widely accepted. Consequently, we must hold—as every federal circuit court and state court to consider the question has—that this type of intrusive, covert video surveillance is subject to heightened standards and procedures designed to implement Fourth Amendment protections, particularly in the face of the constantly expanding use of electronic surveillance techniques by law enforcement. And where the government fails to faithfully follow these standards and procedures, it will be held to account by the exclusion of the evidence obtained. The Fourth Amendment demands no less under these circumstances.

The trial courts did not err in concluding that total suppression was the appropriate remedy under the circumstances of this case.

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