Getty Images

With a member of law enforcement apparently using the potential release of a private video in the Robert Kraft case as leverage for a deal, one of Patriots owner Robert Kraft’s lawyers has taken public an attack on the legality of the recording.

“We’ve looked at . . . the law around the warrant for the video surveillance inside the spa, and we think it is a violation of the Fourth Amendment,” William Burck said, via Emily Smith of the New York Post. “We also believe the traffic stop [made by police as the men left the spa] was illegal and a violation of the Constitution. . . .

“The state attorney should take a look how the evidence in this case was obtained by the police and explain how this evidence passes Constitutional muster, because we don’t see it.”

These comments confirm what had been percolating as to the planned assault on the case: Regardless of whether the state can prove that solicitation happened (which, frankly, becomes difficult if not impossible without evidence of an advance promise made to pay for sex), a successful challenge to the legality of the video and other evidence, like the traffic stop that was used to identify Kraft in the video, will gut the case entirely.

Burck also pointed out that prosecutors have refused to agree to keep the video confidential, forcing Kraft’s lawyers to take the matter to court.

“We put in a motion for a protective order of the evidence in this case, a standard request in any case to keep evidence protected until trial — especially since the video evidence supposedly contains private moments between [two or more] people,” Burck said. “We’ve been surprised and disappointed that the state attorney did not sign on to the protective order, because it is a standard procedure in a criminal case. They declined to agree to the protective order.”

A judge will now make that decision, including the more important decision as to whether the state violated Constitutional standards when collecting the evidence that would be used against Kraft, if the case were to go to trial.