Filing # 89652341 E-Filed 05/16/2019 02:24:40 PM IN THE COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT. IN AND FOR INDIAN RIVER COUNTY STATE OF FLORIDA, Plaintiff, vs, Case No. 312019 MM 000461 A MARTIN BROPHY, Defendant. / ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS ‘This Cause came to be heard on the dofendant’s First Amended Motion to Suppress idence gathered as a result of two orders, each titled Order for Surreptitious Entry and Installation of Electronic Surveillance Camera. The Court conducted a hearing on April 23, 2019, at which time the Court received evidence and argument. of counsel and then allowed the parties the opportunity to submit written memoranda of law. After reviewing and applying the relevant. caselaw, for reasons articulated in this order, the Court grants the defendant’s motion. e 1. Summary of the Facts In October, 2018, based on intelligence information derived from peers in the law enforcement community, agents with the Indian River County Sheriff's Department decided to investigate whether the massage parlor known as East Sea Spa was actually a front for prostitution or human trafficking activities. State corporation records indicated the owner of the Kast Sea Spa was Liyan Zhang. Massage parlors are regulated by the Florida Department of Health and are subject to at least one unannounced health inspection per year. As such, the lead detective contacted a health inspector and determined East Sea Spa was due for a routine inspection. At the detective's request, the health inspector conducted the yearly inspection for Hast Sea Spa on October 24, 2018. The inspector reported that she found evidence (clothing, suitcases, food, bedding) that workers at Kast Sea Spa were living at the business. Based on this discovery, the inspector was required to make a report to Polaris, which is a human trafficking hotline. The health inspector also reported that Kai Mei Wang was an employee present. at t ¢ of the inspection. Detectives determined that Kai Mei Wang had a criminal history that included a charge of prostitution in New Jersey. Through surveillance, detectives learned the clientele for Bast Sea Spa was mostly middle-age males. The lead detective went on the internet, and did a search using East Sea Spa’s advertised phone number. The search results included links to rubmaps.com, backpage.com, USAsexguide.nl, bodyrubations.com and massagetroll.com. Backpage.com was shut down due to it being used to facilitateprostitution, But the detective was able to view a webpage where an individual posted comments originally posted on backpage.com about sexual services he received at, Kast Sea Spa. Another website gave the same indieation, but could not be further accessed without. paying a fee, Detectives approached and questioned two men seen leaving East Sea Spa who admitted they had received a legitimate massage followed by a “hand job” in exchange for $40.00. Detectives also conducted a trash pull and discovered napkins that had the presence of semen. In order to get a better understanding of East Sea Spa's layout, an undercover officer was sent in to purchase gift cards. Based on ethical concerns, the Sheriff's Department did not try to send in an undercover officer or informant to request a massage. ‘The Department believed that this may require the agent or informant to get undressed and/or be subject to an employee touching the agent’s/informant’s genitals before a determination could be made that a crime had occurred. Detectives also did not attempt to interview the Spa's owner or its employees for fear the investigation would be compromi Based on the evidence, the lead detective obtained a template for a warrant application and warrant, from an assistant state attorney. The application sought. a “visual lance warrant” to gather evidence of prostitution and to prove Spa employees were deriving support. from the proceeds of prostitution, in violation of Florida Statute. The potential targets of the investigation were Spa employees and male customers. Specifically, the application requested permission to allow detectives to surreptitiously enter ast Sea Spa and install 4 video cameras within 10 days of the date the warrant was approved. The application requested permission to intercept and record non-verbal conduct for a period of up to 30 days. Notably, the application template provided by the State specifically referred to United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990), as authority for visual surveillance warrants, but the lead detectives testified that. they had not read the opinion. ‘The lead detective added his investigatory findings to the application and sent. the completed application back to the assistant. state attorney for approval. After the State's approval, the application and proposed warrant were then given to a circuit judge. After considering the application, Judge Cynthia Cox approved an “Order for Surreplitious Entry and Installation of Electronic Surveillance Camera” provided by the State on December 11, 2018. The order allowed the Sheriff or his deputies to: survi to enter and install in the premises to be searched video surveillanee cameras, and to monitor these surveillance cameras for a period of no longer than 30 days, and forthwith make return of your doings upon executing this warrant, which ‘you are hereby commanded to execute as the law directs within ten days from the date thereof. While monitoring the premises to be searched, the Sheriff shall take steps to minimize the invasion of privacy to any parties not engaged in the unlawful acts set forth in the affidavit. The Sheriff shall also make efforts to minimize the disclosureof this surveillance operation to only those sworn law enforcement officers pertinent and relevant to this surreptitious investigation and those sworn law enforcement officers involved in the operation shall be explained this Order as well as the Florida Statute pertaining to Contempt of Court.” (Emphasis in original) Detectives installed 4 cameras a few days after the warrant was signed. The ‘cameras were positioned to record each of 4 massage rooms. Circuit Judge Dan Vaughn authorized a successive 30 day warrant on January 17, 2019 using an order identical to Judge Cox's order. Like the first application, the application supporting the second warrant, sought to gather evidence of prostitution and to prove Spa employees were deriving support, from the proceeds of prostitution, in violation of Florida Statute. The application for the second warrant included details from 9 surveillance days wherein 43 men received sex acts from East Sea Spa employees. Between the 2 visual surveillance warrants, detectives monitored and recorded 13 of the allowable 60 days and recorded a total of 63 sex acts. During those 13 days, every male that entered a massage room to obtain a massage ended up engaging in sexual activity. ‘The customers using East Sea Spa were overwhelmingly male. ‘There was no testimony as (o the actual number of females using the spa to receive a legitimate massage, but the evidence suggests there were very few. The recording equipment employed in this case allowed detectives to either record 1 of the massage rooms, all 4 massage rooms, or none at all!. However, when detectives were faced with a situation where a room was being used to allow a woman to be massaged at the same time another room was used to allow a. man to receive a massage or sex acts, detectives did not turn off the camera recording the woman's massage so that only the male customer was recorded. In that instance, both rooms would be recorded. The lead detective brought. this fact to the attention of an assistant state attorney and was told by the assistant state attorney to continue this procedure. Instead of watching the woman's massage, detectives would “zoom in” on the man's activities such that. the woman's massage was not displayed on the viewable screen. ‘As a result, during the 13 days of recording, on every occasion where a female customer received a massage at. the same time a male customer was receiving a massage in a different room, the female customer's massage was recorded. This happened on four occasions. In one of those eases, the video of an hour-long massage of a female was disseminated by the Sheriff's Department to the defense lawyer in a discovery packet. "There wore two dotectives doing most of the monitoring. One of the detectives has exportise in electronic ‘equipment and his tostimony forms the basis for this finding. However, it should be noted that. the other detective believed the equipment could record all 4 massage rooms, or none at all. Thus, its eloar that the recording eapability of the equipment was not verified bofore the operation began as part of minimization procedures.