Prosecutors seek new felony charges against Patriots owner

But now lawyers for the state are arguing for the first time that Kraft — charged with two misdemeanor counts of soliciting prostitution — actually committed a felony.

The latest court filing from the attorney general's office suggests Kraft could face a third-degree felony punishable by up to five years in prison, if the state wins its appeal of a lower-court order favoring the billionaire.

Elevating multiple misdemeanors to a felony would be an unusual move.

"I literally have never seen that enhancement used in any county," said veteran criminal defense attorney Jack Fleischman, who is not connected with the litigation. "It has to be rare."

So, for that matter, is the high-profile Kraft case.

Constitutional test

Observers across the country view it as a constitutional test that pits police powers to investigate crimes — specifically the authority to use secret cameras — against individual privacy rights.

Florida is challenging a judge's order in May that tossed all evidence against Kraft, including sex videos that cops surreptitiously recorded during their prostitution sting.

The judge ruled police did not have a lawful "sneak-and-peek" warrant when surveillance cameras ran continuously for five days at Orchids of Asia Day Spa.

Kraft took Bentley-chauffeured trips to the business on Jan. 19 and 20, which was the day before and the morning of the AFC Championship game. Reports say he showed a Super Bowl ring to an officer and asked the cop if he was a Miami Dolphins fan.

Nearly 300 men charged

Kraft emerged as the most well-known figure from undercover investigations of 10 spas around the state. Nearly 300 men were charged overall last February, along with owners and employees.

Riding on the court outcome is the possibility that Kraft could be hit with sanctions from the NFL. He has already apologized to his family, friends and fans "who rightfully hold me to a higher standard."

The legal fight is now at the 4th District Court of Appeal in West Palm Beach. Lawyers for the state have requested an opportunity for both sides to iron out their positions in person, before a three-judge panel makes a ruling.

Robert Kraft’s lawyers dispute filing

Kraft's representatives most recently slammed the state's lawyers for violating a rule that restricts page counts in pleadings. The state had asked for special permission to file a 28-page argument, which is 13 pages longer than typically allowed.

"That the State here is seeking to criminally prosecute one of its citizens — using evidence obtained during a dragnet video surveillance scheme that breaks from Fourth Amendment constraints agreed on by other courts — hardly entitles it to special dispensation or sympathy," wrote Kraft lawyers Frank Shepherd and William Burck.

In response, the appeals court Monday ordered the state to abide by the 15-page maximum and refile it.

The state attorney general's office says it won't discuss a pending case.

"As litigation is ongoing, we cannot comment at this time," press secretary Kylie Mason wrote in an email Thursday.

Kraft's legal representatives could not be reached this week.

‘Committed a felony’

The extra-long document from the state remains on the docket for all to see. In it, the prosecutors took aim at one of Kraft's main positions — that police went to extreme and unnecessary lengths over simple misdemeanor crimes.

"The investigation at issue here culminated in numerous felony charges against the owner, manager, and employees of the Spa," the state's attorneys wrote Dec. 17. "In addition, any person who purchased prostitution services on multiple days, as Mr. Kraft did, committed a felony."

Deputy Solicitor General Jeffrey Paul DeSousa also made the point that the police had a much-wider scope than low-level, money-for-sex transactions.

"Finally, this Court need not turn a blind eye to the fact that investigations into illicit prostitution schemes often yield evidence of more serious crimes, including the modern-day slavery that underlies the felony offense of sex trafficking," DeSousa wrote.

No proof of trafficking

Kraft's representatives have accused authorities of misleading the public about human trafficking at the massage parlor, before prosecutors admitted they can't prove it.

Officials said state health department inspections, before the sting, strongly suggested that sex workers from China were living at the business. Later, prosecutors explained they were unable to file trafficking charges because the workers declined to cooperate with investigators.

The issue of cameras

The main battle in the pending appeal focuses on whether the warrant for the stealth cameras was proper.

Palm Beach County Judge Leonard Hanser decided the warrant was flawed because it didn't require the officers to "minimize" their surveillance by focusing entirely on criminal acts.

At least four people — women and men — were videotaped receiving real massages with their clothes off while the cameras were rolling. During the same period, 35 videos captured some sexual activity, records show.

Seeking to overturn Hanser's ruling, the attorney general's office contends "more stringent minimization procedures were not required" by law given the circumstances.

The appeal urges that "police must be afforded greater leeway" to fight crime, "though it is of course preferable that no customer be recorded receiving a lawful massage."

"Mr. Kraft's guilt is a virtual certainty" based on the massage parlor videos, the state asserts in its bid to use the footage against him.

Lawyers for Kraft argue the "drastic, invasive" snooping was out of bounds for "investigating alleged offenses like prostitution."

They say they want this case to be over soon because the "specter of renewed criminal prosecutions hangs like a Sword of Damocles" over their wealthy client.