Citing the Florida Constitution’s heightened protections from governmental intrusion, a Vero Beach attorney representing more than two dozen men arrested in a recent prostitution sting is asking judges to exclude from trials the video evidence prosecutors need to prove their cases.
Andy Metcalf said he has filed motions to suppress the surveillance video police used to charge more than 160 men with soliciting prostitution at two massage spas in Indian River County. A hearing has been set for April 23.
“I’m attacking the installation and use of the cameras,” Metcalf said. “The need for the video in a low-level prostitution case is pretty aggressive stuff. This was an overreach by law enforcement.”
On Monday in Vero Beach, County Judge David Morgan denied Metcalf’s motion to prohibit the dissemination of the spa videos, saying it was “not ripe,” which means the videos haven’t been publicly released and no one has requested them.
However, Metcalf said Morgan ruled that the videos’ contents were obscene under Florida law, which makes it a first-degree misdemeanor to disseminate obscene materials.
In his motions to prohibit prosecutors from using the spa videos at trial, Metcalf argued that the men had “no expectation” they would be viewed by anyone other than the masseuses working in rooms with “shut doors and blinded windows” – a setting designed to provide the privacy needed to undress for a massage.
“Florida courts have held that where governmental action invades a citizen’s legitimate expectation of privacy, it must be done in the ‘least intrusive manner possible,’” Metcalf wrote in his motion, adding, “In this case, law enforcement failed to implement a number of investigative tools far less intrusive than video surveillance.”
Metcalf claims Vero Beach police didn’t need video surveillance from inside the massage rooms to make a prostitution case against the owners and workers at the East Spa on 14th Avenue, because they already had gathered enough evidence through other means.
He said these means included two visits to the spa by an undercover officer who was inappropriately touched and was offered sex for money.
“They had all this other evidence – and they already knew the owner,” Metcalf said. “They had everything they needed to make their case. They didn’t need to install cameras. They didn’t need the video. They knew what was going on. They certainly didn’t need to continue the video surveillance for as long as they did.
“The courts have ruled that this kind of surveillance should be used for only the most serious offenses,” he continued. “And the law says judges must be convinced that reasonable, normal investigative procedures were tried and failed, or are unlikely to succeed, or that they would pose too great a danger to police.
“That wasn’t the situation here,” he added. “The Vero Beach police used alternative investigative techniques and they worked.”
Metcalf said the Indian River County Sheriff’s Office did not attempt to send an undercover agent into the East Sea Spa on U.S. 1, north of Sebastian, because detectives decided it was “impractical.”
In his motions, Metcalf wrote that evidence of human trafficking or more insidious criminal activity was “not captured at any point on the video surveillance authorized by the warrants in this case.”
Metcalf said he has received through discovery all of the videos pertaining to his clients and has seen no evidence that the men solicited prostitution. There are no audio recordings.
“I haven’t seen any of my clients solicit, entice, induce or procure prostitution,” he said. “And without audio, how do you know who initiated the solicitation? I saw some inappropriate touching initiated by the women. They were very aggressive.”
Prosecutors already have dropped charges against four men because there was no video evidence money changed hands after the initial massage payment. Charges against a fifth man were dropped because he was misidentified.
If his motion to suppress is granted and the videos are thrown out, Metcalf said he believes State Attorney Bruce Colton will drop the cases against the johns, all of whom were charged with first-degree misdemeanors in February.
However, Colton said prosecutors will add a second charge – “using a structure for prostitution,” an easier-to-prove second-degree misdemeanor – if any of the men take their cases to court.
Colton said last month he’s confident the spa videos will not be suppressed and that they will be used by prosecutors as evidence to prove the first-degree misdemeanor charges.
