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Spa cases on hold as prosecutors appeal suppression of video evidence against ‘johns’


Prosecutors showed up in court on Monday morning to ask for a continuance in the cases they are pursuing against dozens of men accused of soliciting prostitution at two spas in Indian River County.

The action came after prosecutors were hit with unfavorable rulings on Friday, when County Court Judges David Morgan and Nicole Menz decided that surveillance videos recorded by law enforcement agencies at the massage parlors could not be used as evidence against the men, who were arrested in February.

The State Attorney’s Office filed notice of appeal after the judges ruled, intending  to ask a panel of three circuit judges to overturn the lower-court decisions and allow prosecutors to use the spa videos at trials – or as leverage in making plea deals.

In the meantime, the continuance was granted, putting the cases on hold until the appeal is decided.

Assistant State Attorney Steve Wilson said the circuit judges probably wouldn’t hear the appeal for at least two months as both prosecutors and defense lawyers prepare their arguments.

So these cases will drag on.

That worries Vero Beach defense attorney Andy Metcalf, and not because he represents more than 30 of the men arrested.

“What the state is saying should send chills up your spine,” Metcalf said Monday, after Morgan postponed further action on more than 50 of the solicitation cases until the circuit judge panel rules on the appeal.

“The state is asking for legal authority to install spy cameras to get video recordings of people undressing, in the nude and in their most-intimate moments, and they don’t care if innocent people are involved,” he continued. “They’re arguing that the ends justify the means, even in pursuit of misdemeanors.

“I’ve never seen our government act this way,” he added. “This is one step from putting a camera in your bedroom. It’s a sad day for me. It should be a sad day for all of us.

“If you believe in our Constitution, you’ve got to be scared.”

But not shocked.

Given the dramatic headlines generated since local law enforcement agencies held a joint news conference on Feb. 19 to reveal the details of its prostitution sting, Metcalf said he expected prosecutors to appeal the county judges’ rulings.

He said he won’t be surprised to see prosecutors take their case to Florida’s Fourth District Court of Appeal in West Palm Beach, if the circuit judges uphold the County Court rulings.

Metcalf doesn’t think they’ll win, though, especially since the rulings by Morgan and Menz followed similar decisions by judges in Martin and Palm Beach counties.

Indian River and Martin counties both are part of the 19th Judicial Circuit, where Vero Beach resident Bruce Colton is the State Attorney. Palm Beach County is in the 15th Judicial Circuit.

“We now have four separate judges who’ve listened to the testimony and reviewed the cases, and they’ve all granted motions to suppress the videos,” Metcalf said. “Are all four wrong? Have all four misread the law?”

Menz and Morgan granted separate motions to suppress the videos, citing police failures to minimize the invasion of privacy of innocent customers and expressing doubt that detectives sufficiently understood the limits of the court orders that allowed them to conduct the secret electronic surveillance between November and February.

Neither judge found problems with the warrants issued by Circuit Judges Cynthia Cox, Paul Kanarek and Dan Vaughn during the course of the investigation. However, both Menz and Morgan were critical of how law enforcement officers executed those court orders during their surveillance of the East Spa in downtown Vero Beach and East Sea Spa, located north of Sebastian.

Menz referred to a “fatal flaw” in the way the Vero Beach Police Department conducted its non-stop video surveillance, while Morgan wrote that he had “strong doubts” as to whether any of the Indian River County Sheriff’s detectives “understood the Constitutional issues inherent in this type of warrant.”

Both judges described video surveillance as the most intrusive tactic used by the government to investigate crimes.

In fact, Menz wrote: “Just as there is a reasonable expectation of privacy in a doctor’s office, dressing room or fitting room of a department store, or a restroom in a business, it is the opinion of this court that there is a reasonable expectation of privacy in a massage room,” adding that the defendants had a “legitimate expectation of privacy that is protected by the Fourth Amendment of the United States Constitution.”

Metcalf is hoping Colton decides to drop the charges if the state’s appeal to the circuit judges fails.

“If their goal was to shut down the spas and break up a prostitution ring, mission accomplished,” Metcalf said. “So why push so hard to go after these men, who’ve already paid a price, who’ve already suffered shame and embarrassment 50 times over? Why file an appeal for misdemeanors? What good can come from it?”

For what it’s worth, Metcalf places the bulk of the blame for the botched video surveillance on prosecutors, not the police.

“This wasn’t done by a group of rogue officers,” Metcalf said. “This was done with the authorization and supervision of the State Attorney’s Office. Someone from that office should’ve been more closely monitoring the operation.

“That’s not just my opinion,” he added. “That’s the judgment of the court.”

The State Attorney’s Office disagrees with that judgment, so the legal battle over the spa videos continues.

But is it necessary?

“We go through this every day as defense lawyers,” Metcalf said. “When defendants do something wrong, the state expects them to come into the courtroom, own up to what they did and accept the consequences of their actions.

“Why can’t we expect the same from the state?” he added. “