Filing 88505183 E-Filed 04/25/2019 10:06:13 AM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA

STATE OF FLORIDA

V. Case Nos. 


ROBERT KRAFT,

Defendant.

 

DEFENDANT ROBERT OPPOSITION
TO MOTION TO STRIKE MOTION TO SUPPRESS

FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 04/25/2019 10:06:13 AM

PRELIMINARY STATEMENT

 

Defendant Robert Kraft respectfully opposes the State?s ?Motion to Strike? his pending
motion to suppress. As a procedural matter, the State?s Motion to Strike is untimely and
misplaced. The substance of the State?s Motion to Strike, however, is much worse.

The State has now sunk to arguing that Americans have no reasonable expectation of
privacy and therefore no standing even to invoke the Fourth Amendment in the event that the
police spy on them while they are undressed in private massage rooms?or, for that matter, in
health-club locker rooms, doctors? offices, clothing-store dressing rooms, restaurant bathrooms,
or countless other intimate settings outside their homes. By the State?s latest account, because
Americans patronizing private businesses are merely ?short term visitor[s]? involved in
?commercial transactions,? the Fourth Amendment has no application whatsoever if the State
surreptitiously interjects the most invasive surveillance into the most sensitive settings to
investigate suspected ?illegal[ity]? there. Motion to Strike at 5. The State, having offered no
more than a perfunctory opposition on the merits of his motion to suppress, now seeks to evade
constitutional scrutiny of what it did to lVlr. Kraft. To say this is not to caricature the State?s
submission. Rather, all we are doing is highlighting the bottom line that inexorably (albeit
surreally) emerges upon reviewing the State?s Motion to Strike.

Let everyone be warned: According to the State of Florida, there can be no expectation
of privacy and no Fourth Amendment constraint when people are partially or fully disrobing in
private quarters, unless people happen to be doing so in their own homes or as overnight guests.
The State?s legal position is of course inimical to venerable precedents and principles. Indeed,
the State?s position should appall anyone who values privacy and constitutional rights. Yet the

State?s position is part and parcel of the outlandish it went to in spying on Mr. Kraft and

other massage patrons, just to investigate what this Court has aptly termed the ?tawdry but fairly
unremarkable event? at issue. The State?s effort to shed constitutional constraints should be
rejected, just as the fruits of its constitutional violations should be suppressed.

ARGUMENT

It bears noting that the State?s ?Motion to Strike,? as filed April 24, 2019, is itself
untimely, improper, and unfounded. lVIr. Kraft ?led his motion to suppress on March 28,
followed by his supporting memorandum on April 2, 2019. The State already ?led its response
weeks ago, on AM, 2019. Any arguments the State wanted to offer against Mr. Kraft?s
request for suppression belonged in its response, and the State offers no justi?cation for now
taking a second bite, weeks later. And the State certainly has no justi?cation for moving to
strike the March suppression motion only two days before the April 26 suppression hearing so as
to sandbag lVIr. Kraft. When litigants misuse a motion to strike in such fashion, Florida courts
deny such motions out of hand. See Boswell v. Boswell, 877 So. 2d 829, 830 (Fla. 4th DCA
2004) motion to strike should rarely be used to challenge the merits of a pleading?); see
also Upland Dev. of Cent. Fla., Inc. v. Bridge, 910 So. 2d 942, 944?45 (Fla. 5th DCA 2005)
hearing on a motion to strike a pleading as sham is not for the purpose of trying the issues,
but rather serves the purpose of determining whether there are any genuine issues to be tried?).
Tellingly, as to the requested striking, the State does not even purport to identify any impropriety
in Mr. Kraft moving to suppress, nor does it cite any authority for striking it. As such, the
State?s Motion to Strike can and should be denied on its face.

I. MR. KRAFT HAS STANDING AND THE FOURTH AMENDMENT IS IN PLAY

It should go without saying that Mr. Kraft and everyone else in the United States have a
reasonable expectation that the govemment will not secretly spy on them while they undress

behind closed doors. But not in Florida, apparently, at least according to the State?s latest

position in this case. In moving to strike, the State contends that Mr. Kraft and other massage
patrons have no reasonable expectation of privacy, and nothing to complain about under the
Fourth Amendment, if the State places them under covert video surveillance and records them
while they are nude receiving private massages in private rooms at a licensed spa. Were that
correct, the State would have carte blanche to institute such surveillance without regard for the
Fourth Amendment across any number of intimate settings where Americans may undress every
day outside the home?including restrooms, locker rooms, showers, doctors? offices, dressing
rooms, etc. Across all those settings, the State could argue, as it does now, that the targets of its
surveillance are merely ?short term visitor[s]? to ?commercial? premises pursuant to some sort
of transaction, Motion to Strike at 5 after all, money is almost invariably changing hands when
people visit their gyms, physicians, workplaces, department stores, restaurants and the like. Of
course, the State?s argument that there can be no reasonable expectation of privacy in these

circumstances is grossly misconceived.1

 

1 Equally misconceived is the State?s recurring suggestion that the Fourth Amendment
and privacy considerations are somehow disabled by suspicions and allegations of criminality.
See Motion to Strike at 9. Suspicions and allegations of criminality are the starting point, not the
ending point, of suppression inquiry; they may justify a search, but they do not obviate the
reasonable expectation of privacy in the place searched. See MCDade v. State, 154 So. 3d 292,
299 (Fla. 2014) (?Privacy expectations do not hinge on the nature of defendant?s activities?
innocent or criminal. In fact, many Fourth Amendment issues arise precisely because the
defendants were engaged in illegal activity on the premises for which they claim privacy
interests.? (alteration in original) (quoting United States v. Fields, 113 F. 3d 313, 321 (2d Cir.
United States v. Gray, 491 F. 3d 138, 169 (4th Cir. 2007) (?Fourth Amendment rights
have never hinged on whether a defendant?s activities were innocent or criminal. Instead, the
?guarantee of protection against unreasonable searches and seizures extends to the innocent and
guilty alike.?? (quoting McDonald v. United States, 335 US. 451, 453 (1948)); Elliotte v.
Commonwealth, 372 416, 418 (Va. 1988) (The fact ?that a person is engaged in criminal
conduct within his home does not, standing alone, destroy a homeowner's expectation of

privacy.? (citing United States v. Whaley, 779 F.2d 585, 590 n.8 (11th Cir. 

Indeed, the State itself knows how wrong its instant submission is. It speci?cally
de?nes, by statute, a ?[p]lace and time when a person has a reasonable expectation of privacy? as
?a 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, ?tting room, dressing room, or tanning boot 810.145, Fla.
Stat. (emphasis added). David Aronberg, of all people, should know how wrong the State?s
instant submission is, having been widely reported and quoted as championing the State?s anti-
voyeurism statute noted above precisely because ?the public?s privacy has always been very
important to him.? See, Tanya Caldwell, Bill Aims to Draw Curtain on Voyeurs, S. Fla. Sun
Sentinel (Mar. 19, 2004), 
story.html. For the State?s of?cers now to sacri?ce the public?s acknowledged right to privacy
in service of a misdemeanor prosecution is not only hypocritical but unhinged.

The threshold question for Fourth Amendment purposes is simply whether someone has a
subjective expectation of privacy in the area searched and whether society recognizes that
expectation as objectively reasonable. See California v. Greenwood, 486 US. 35, 39?40 (1988);
Katz v. United States, 389 US. 347, 351 (1967). There can be no doubting that such expectation
attaches to private massage rooms in licensed massage parlors, where customers strip naked as a
matter of course. Again, Florida has speci?cally acknowledged and vindicated that expectation
via its own statute. Especially considering that Katz itself recognized a customer?s reasonable
expectation of privacy in a public phone booth that he was paying to use, on a short-term basis,
without staying overnight, Katz, 389 US. at 352 354 n.14, the folly of the State?s instant

contentions should be readily apparent. See id. at 351 (?One who occupies [a public phone

booth], shuts the door behind him, and pays the toll that permits him to place a call is surely
entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.
To read the Constitution more narrowly is to ignore the vital role that the public telephone has
come to play in private communication?).

What is more, this case involves maximally intrusive, covert video surveillance that no
American should expect to have intruding into intimate settings and that courts have recognized
as raising specters of an ?Orwellian state.? United States v. Cuevas-Sanchez, 821 F.2d 248, 251
(5th Cir. 1987); United States v. Kayomejian, 970 F. 2d 536, 551 (9th Cir. 1992) 
surveillance can result in extraordinarily serious intrusions into personal privacy. . . . If such
intrusions are ever permissible, they must be justi?ed by an extraordinary showing of 
United States v. Mesa-Rincon, 911 .2d 1433, 1442 (10th Cir. 1990) (?Because of the invasive
nature of video surveillance, the government's showing of necessity must be very high to justify
its use?); United States v. Torres, 751 .2d 875, 882 (7th Cir. 1984) (?We think it . . .
unarguable that television surveillance is exceedingly intrusive . . . The severity of this
intrusion gives rise to an even stronger expectation of privacy than may be implicated by less
intrusive forms of surveillance. ?Persons may create temporary zones of privacy within which
they may not reasonably be videotaped . . . even when that zone is a place they do not own or
normally control, and in which they might not be able reasonably to challenge a search at some
other time or by some other means.? United States v. aketa, 923 .2d 665, 677 (9th Cir. 1991)
(citing People v. Dezek, 107 Mich. App. 78, 308 N.W. 2d 652, 654?55 (1981) (recognizing
reasonable expectation of privacy from videotaping in restroom stalls)); see also Bond v. United
States, 529 US. 334, 337?38 (2000) (considering severity of governmental intrusion in

determining whether a legitimate expectation of privacy exists); Jones v. Houston Cmty. Coll.

Sys., 816 F. Supp. 2d 418, 435?36 (S.D. Tex. 2011) person may have a legitimate
expectation of privacy with respect to a particular type of intrusion, even if not to others?).

The State misplaces its reliance on Minnesota v. Carter, 525 US. 83 (1998), where a
police officer spotted drugs being packaged through a ground-?oor window. In holding that no
reasonable expectation of privacy was implicated there, the Supreme Court emphasized that the
defendants ?were essentially present for a business transaction? and had no ?other purpose? in
visiting the apartment, which was ?simply a place to do business? for them. Id. at 90. The
Court?s point was not to declare open season for government?s prying eyes to roam across
?commercial? premises without regard for the Fourth Amendment. Rather, the Court was simply
focusing on the purely transactional, ?just business? nature of the defendants? presence and their
lack of any personal connection to the property. The facts and calculus change profoundly when
the State ventures behind closed doors into areas where people are meant to be undressing. If it
were otherwise, to cite but one example, men and women disrobing to try on potential clothing
purchases in changing rooms at department stores could have no legitimate expectation of
privacy against covert video surveillance in the State of Florida. That has never been the law
anywhere in the United States, and Florida, in particular, has gone so far as enacting a statute
ensuring no one could mistake that to be the law.

As the Ninth Circuit explained in declining to read Carter as the State now urges, ?We
reject the government?s broad argument that a court may never consider the severity of the
governmental intrusion in determining whether a citizen has a legitimate expectation of privacy.
To adopt the government?s position would be to ignore a substantial body of Supreme Court and
appellate case law, including the recent Supreme Court decision in Bond United States, 529

US. 334, 120 1462, 146 L.Ed.2d 365 (2000).? US. v. Nerber, 222 F.3d 597, 600 (9th Cir.

2000). Courts accord in continuing to recognize that people have a legitimate expectation of
privacy, particularly against covert video surveillance and other intrusive probes, once they enter
secluded private areas such as dressing rooms and bathrooms, regardless of whether those areas
are found within commercial or public premises. See, Ramirez v. State, 654 So. 2d 1222,
1223 (Fla. 2d DCA 1995) (recognizing legitimate expectation of privacy soon as
[defendant] entered the closed toilet stall?); DeVittorio v. Hall, 589 F. Supp. 2d 247, 256?57
(S.D.N.Y. 2008) the fact that the room is used for private functions, such as changing
clothes, plaintiffs do have a reasonable expectation of privacy from covert video surveillance
while in the locker aff?d, 347 F. App?x 650 (2d Cir. 2009); Trujillo v. City of Ontario,
428 F. Supp. 2d 1094, 1104 (CD. Cal. 2006) (?Plaintiffs need not have an expectation of total
privacy in order to have a reasonable expectation that they will not be recorded surreptitiously
while changing clothes in a locker Bevan v. Smartt, 316 F. Supp. 2d 1153, 1162 (D.
Utah 2004) (recognizing dancers? ?reasonable expectation of privacy in the dressing room? of
?sexually-oriented? dancing establishment); Hancock v. Dallas Cty. Cmty. Coll, 2004 WL
527170, at *4 0WD. Tex. Mar. 17, 2004) (recognizing ?expectation of privacy while behind the
closed door of a public restroom?); Kroehler v. Scott, 391 F. Supp. 1114, 1116 (ED. Pa. 1975)
(recognizing reasonable expectation of privacy of persons using toilet stalls in public restrooms);
see also Overview of the Fourth Amendment, 39 Geo. L.J. Ann. Rev. Crim. Proc. 3, 21 n.14
(2010) (collecting cases holding that ?individuals may enjoy an objectively reasonable
expectation of privacy in public places under circumstances in which one would reasonably
expect temporary freedom from intrusion?). The State?s contrary argument ?is meritless, indeed
borders on the frivolous.? Nelson (Roger) v. City of Chicago, 1986 WL 8367, at *1 (ND. 111.

July 23, 1986).

II. MR. MOTION IS LEGALLY SUFFICIENT AND ACCOUNTS FOR
THE ALLEGED CRIME

The State is equally wrong to attach talismanic signi?cance to the ?crime of Deriving
Support from the Proceeds of Prostitution? and to argue as though that changes the relevant legal
analysis, much less renders Mr. Kraft?s arguments nugatory. See Motion to Strike at 14?15. For
one thing, mischaracterizations and falsehoods, including bogus suggestions of human
traf?cking, infect the warrant and af?davit irrespective of what crime the Jupiter Police
Department now purports to have identi?ed as the justi?cation for the sneak-and-peek warrant,
as Mr. Kraft has already noted and will further establish at the hearing. As a result, it has
become impossible to separate one crime from the other in the way that the State now attempts.

Nor would it make any difference whether the probable cause is framed in terms of
?prostitution? or ?deriving support from the proceeds of prostitution?: Florida law does not
authorize sneak-and-peek warrants for any such crime, and Florida?s Legislature has expressly
excluded both such crimes, which together fall under Section 796, from the set of crimes
statutorily eligible for extraordinary, intrusive surveillance of the sort at issue. See 934.07, Fla.
Stat. (enumerating offenses for which a wiretap may be authorized).

Finally, because Title and the Fourth Amendment constrain the means of investigation
of one crime no less than the other, the absence of requisite necessity and minimization remains
equally glaring and fatal. Notably, the only substantive stab at showing supposed necessity in
the af?davit was geared around human traf?cking: When Detective Sharp attested that
masseuses might be ?very reluctant to speak with law enforcement out of fear? and engaging in
prostitution ?as means to repay a debt for transportation to the United States or to protect
themselves and/or their families from abuse,? Mem. in Support of Mot. to Suppress, Ex. A (Aff.

of A. Sharp), at 9, he was relying upon a theory of human traf?cking, not proceeds. If, as the

State now suggests, probable cause was founded on proceeds of prostitution, then there is no
articulated reason whatsoever why law enforcement could not have successfully investigated
that without secretly recording patrons disrobing for their massages in private rooms.



For the foregoing reasons, as well as those set forth in Mr. Kraft?s Motion and
Memorandum to Suppress and will be further illuminated at hearing, the Motion to Strike should

be denied and the requested suppression should be granted.

Respectfully Submitted,
ATTERBURY, GOLDBERGER WEISS, P.A.

By: Jack Goldberger

aek Goldberger

250 Australian Ave. South, Suite 1400
West Palm Beach, FL 33401

(561) 659-8300

QUINN EMANUEL URQUHART
SULLIVAN, LLP

William A. Burck (admitted pro hac vice)
Alex Spiro (admitted pro hac vice)

Williamburek@quinnernanuel.com
1300 I Street NW, Suite 900
Washington, DC. 20005

(202) 538-8000

alexspiro@quinnemanuel.com
51 Madison Avenue, 22nd Floor,
New York, NY 10010

(212) 849-7000

Attorneys for Defendant Robert Kraft

10

CERTIFICATE OF SERVICE

 

I HEREBY CERTIFY that a true and correct copy of the foregoing has been ?led with
the Clerk of Court using the Florida Courts E-Filing Portal and served Via E-Service to Assistant

State Attorney Elizabeth Neto and Judy Arco, on this day, April 25, 2019.

By: Jack Goldberger
Jack Goldberger
250 Australian Ave. South, Suite 1400
West Palm Beach, FL 33401
(561) 659-8300