At least one partially naked woman – who was receiving a legitimate, hour-long, non-sexual massage in January – was included in the surveillance videos recorded by hidden cameras installed by the Indian River County Sheriff’s Office during its recent prostitution sting at a spa north of Sebastian.
So Vero Beach attorney Andy Metcalf, who represents more than two dozen of the men charged with soliciting prostitution, said he now plans to review all of the Sheriff’s Office’s in-room videos from the East Sea Spa to see if other innocent customers may have been similarly surreptitiously recorded.
Metcalf, who noticed the woman while combing through the video evidence turned over by prosecutors during the discovery process, said the videos expose the Sheriff’s Office’s failure to minimize the invasion of privacy required by the search warrants issued by Circuit Court Judges Cynthia Cox and Paul Kanarek.
He also contends the Sheriff’s Office’s six-week, video-surveillance operation lacked the required judicial oversight and, thus, continued longer than was necessary to break up the prostitution ring.
“Law enforcement has a duty to minimize the invasion of privacy – not to invade the privacy of people committing no criminal act and doing nothing more than getting a massage,” Metcalf said. “I can’t think of a more invasive surveillance than to videotape someone when they’re naked.”
Metcalf has joined with other area defense attorneys in disputing the legality of the so-called “sneak-and-peek” warrants used to arrest more than 200 men who allegedly paid for sex at massage spas from Jupiter to Orlando, more than 150 of them in Vero Beach, Sebastian and the northern tier of Indian River County.
The attorneys claim the hidden-camera video recordings of the acts inside the spas violated the elevated privacy rights guaranteed in the Florida Constitution and reveal a disturbing abuse of police powers.
In fact, County Judge David Morgan was expected to rule Tuesday on Metcalf’s motions to suppress the videos prosecutors plan to use as evidence against his clients if the men take their cases to trial.
Last week, Morgan ordered the State Attorney’s Office to provide Metcalf with all the in-room videos recorded by the Sheriff’s Office. However, the judge denied Metcalf’s request that the court compel prosecutors to identify the woman.
Metcalf included with his motion a time-stamped photograph that shows the woman covered by a white towel and lying face-down on the massage table during her early-afternoon visit to the spa on Jan. 18.
Metcalf said the woman “has a right to know” that the video records her undressing and wrapping herself in the towel, and that her “breasts are exposed” when she turns over on the massage table. The Sheriff’s Office has an obligation to inform the woman that she was recorded at the spa, he said.
“They recorded it, and I have it,” Metcalf said, adding that deputies working the case “absolutely” saw the woman’s video.
Metcalf said he initially received from prosecutors “about seven” videos recorded by the Sheriff’s Office, along with 25 recorded by the Vero Beach Police Department at the East Spa on 14th Avenue in downtown Vero. He expects to receive from prosecutors another 50 videos from the East Sea Spa, located on U.S. 1 north of Sebastian, as a result of Morgan’s order.
The Sheriff’s Office’s videos show simultaneously the activity in all four rooms at the Sebastian-area spa, Metcalf said, enabling him to see legitimate massage sessions along with the alleged sex-for-money activity.
He said the Sheriff’s Office was required by the warrant to “stop the recording” once deputies saw the woman was receiving a lawful massage. To do so, however, would’ve prevented them from observing the actions taking place in the other three rooms.
Metcalf said he hadn’t requested all of videos from the East Spa’s two massage rooms because Vero Beach police use a different recording system that provides visual access to only one room at a time.
Two weeks ago, a Jupiter man filed a federal lawsuit against the town police, one of its detectives and Palm Beach County’s state attorney, Dave Aronberg, alleging they violated his constitutional rights by video-recording the massage he received at the Orchids of Asia Day Spa.
The plaintiff, using the name “John Doe” to protect his identity, accused police of “spying” on him while he was in a “state of undress” during his Jan. 19 massage at the Jupiter spa, where he “did not engage in any sexual or illegal activity at any time” during his visit.
The lawsuit states that the plaintiff suffered “invasion of his privacy” and “embarrassment” as a result of the video surveillance.
According to Aronberg’s office, four of the spa’s customers – two men and two women – were recorded while receiving lawful massages.
Metcalf said there’s no legal precedent or case law in Florida pertaining to the type of stealthy video surveillance used during the prostitution sting. Instead, he said state courts have interpreted the law to authorize such surveillance, relying on a wire-tap statute that “mimics” federal law.
“There’s no Florida law that specifically authorizes surreptitious video surveillance, because we don’t do this,” Metcalf said, “so they’re applying wire-tap procedures.”
Those procedures, however, require law enforcement agencies to report back to the judges and end the video surveillance once enough evidence has been obtained to prosecute the case.
Metcalf said the local judges didn’t include in their warrants the clause requiring the agencies to “cease the interception” when enough video evidence had been collected.
“We’re definitely in uncharted territory,” Metcalf said.
