New England Patriots owner Robert Kraft, points to fans as his team warms up before an NFL football game against the New York Jets, Monday, Oct. 21, 2019, in East Rutherford, N.J. Credit: Bill Kostroun | AP

A Florida prosecutor slammed New England Patriots owner Robert Kraft’s arguments to suppress surveillance tapes made at a Florida spa allegedly recording sex acts, calling the case a significant Fourth Amendment ruling in filings submitted Tuesday.

Kraft, who pleaded not guilty to two prostitution charges in February for sex acts allegedly recorded in January at the Orchids of Asia Spa in Jupiter, Florida, earned a victory in May when a Palm Beach County judge suppressed police surveillance evidence, calling filming of non-criminal massages “unacceptable.”

Prosecutors appealed the May decision to suppress video, and Florida Deputy Solicitor General Jeffrey Paul DeSousa refuted Kraft’s arguments to support the May decision in a 23-page reply brief filed last night.

“[Kraft] urges that massages should not have been recorded at any time other than the end of a massage; but the first of his offenses came at the end of a massage,” DeSousa wrote. “And he insists that recording was improper when men left on their underwear at the start of a massage; but he removed his own underwear immediately.”

DeSousa also argued Jupiter police’s nonstop covert surveillance over a five-day period was necessary to gather all facts, and it would have been a difficult burden for police to determine when to film and not film activities for signs of prostitution.

The sides have argued case law surrounding video surveillance in briefs filed since October, and DeSousa wrote in a motion attached to his reply brief the appeals decision in Florida’s Fourth District Court of Appeals “will be the first state appellate court to resolve the Fourth Amendment questions at play here.”

Kraft’s misdemeanor case has been on hold since the appeal filed in May, and another appeal by the women charged with running the Orchids of Asia Spa is locked in a similar appeal battle.

Also in the brief, DeSousa says third parties have filed at least one federal lawsuit for monetary damage alleging the Orchids of Asia tapes violated their own Fourth Amendment rights.

A civil lawsuit by Kraft in a Florida court alleging denial of investigative documents by prosecutors is also pending a ruling on a motion to dismiss by the state.

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