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Prostitution sting charges dropped; defense says that’s not enough

STORY BY RAY MCNULTY (Week of October 1, 2020)

Vero Beach defense attorney Andy Metcalf was pleased last week when state prosecutors decided not to challenge an appeals court ruling upholding suppression of hidden-camera videos used by police in a February 2019 prostitution sting that resulted in the arrests of more than 100 men in Indian River County.

But while Metcalf was thrilled to tell his clients that the State Attorney’s Office was dropping the highly publicized charges against them, he wasn’t satisfied.

“There’s still no recognition by the state that what was done by the various law enforcement agencies involved in this investigation was wrong,” said Metcalf, who represented more than 30 of the men arrested. “The statement from the Attorney General’s Office shows a clear lack of understanding and remorse for what they did.”

In August, the three judges on Florida’s Fourth District Court of Appeal in West Palm Beach unanimously rejected prosecutors’ arguments in defense of the police surveillance of two local massage spas, describing the tactics as “extreme” for investigating misdemeanors.

The appeals court’s ruling upheld the May 2019 decisions of Indian River County Court Judges David Morgan and Nicole Menz, both of whom ruled that prosecutors could not use secretly recorded video surveillance of two local massage spas, where the alleged prostitution occurred, as evidence.

Florida Attorney General Ashley Moody’s office considered taking the case to the Florida Supreme Court, but the deadline to file the appeal passed last week without any such action being taken.

In a statement released to the Palm Beach Post last week, the Attorney General’s Office said prosecutors were “disappointed by the Fourth District’s decision,” but they chose to not seek an appeal to the Supreme Court because they were concerned a high-court ruling against the state “could have broader, negative implications beyond the limited facts of this case.”

“I think the state saw the writing on the wall,” Metcalf said. “It’s not like the decisions of the lower courts were a close call, and the Fourth DCA’s opinion was very strongly worded.

“They knew if they took this to the Supreme Court they could lose,” he added. “And if they lost, it would impinge on law enforcement’s future efforts to investigate those kinds of cases.”

The Fourth District’s 23-page opinion, written by Judge Corey J. Ciklin, offered a stinging rebuke of both the Vero Beach Police Department and Indian River County Sheriff’s Office for failing to minimize the intrusion into the privacy of innocent spa customers – at least four of them were women – in various stages of undress.

Ciklin cited the Vero Beach police investigation as the “most egregious example” of violating constitutional privacy protections because its cameras recorded continuously and indiscriminately for 60 days.

“Those innocent clients potentially live with the knowledge that nude videos of themselves are preserved on a server somewhere with unknown accessibility,” Ciklin wrote. “In our ever-increasingly digital world filled with hackers and the like, such awareness renders the surveillance a particularly severe infringement on privacy.

“We agree with the trial courts that this is unacceptable.”

Moody’s office took charge of the appeal – the sting was the culmination of a multi-jurisdictional investigation of massage spas in Indian River and Palm Beach counties – and the Fourth District Court of Appeals consolidated the cases because the issues were essentially the same.

So, when the Attorney General’s Office opted to abandon further action, local prosecutors had no choice but to drop the prostitution charges.

“As prosecutors on the front lines, we have to act on the evidence available to us,” Vero Beach-based Assistant State Attorney Steve Wilson said. “Without the videos, we’ve filed for formal dismissal of the open cases here.”

He said misdemeanor prostitution charges against 65 men will be dropped, and that he has asked a judge to revoke 12 arrest warrants that hadn’t yet been served because the suspects were out of town.  He said 54 men have completed diversion programs and have had the cases against them dismissed.

“At this point,” Wilson said, “the two felony cases pending against the proprietors of the spas are not affected by the AG’s decision.”

Neither of those cases, however, involved charges for human trafficking – the headline-grabbing crime police said prompted the investigation that produced the prostitution arrests.

Metcalf said many of the men arrested were upset that their names and mugshots were connected to such a heinous offense when police had no evidence such a crime was committed.

He said he’s “getting calls every day” and expects “more than a few” of his clients to join class-action lawsuits against the city and county.