INTERACTIONS WITH POLICE OFFICERS
Prostitution laws criminalize anyone who “engages in or agrees or offers to engage in sexual conduct with another person for a fee.” Generally, these laws are enforced through undercover operations, in which police officers pose as clients and then arrest sex workers. More often, police use vaguely worded “quality of life” regulations prohibiting loitering, loitering with intent to solicit, obstructing vehicular traffic, public lewdness or nuisance, and disorderly conduct, among many other things, to harass, detain, and arrest people believed to be involved in sex work.1
Sex workers, as well as those perceived to be sex workers based on gender non-conformity, experience high levels of violence from police officers. This violence includes rape, sexual assault, and physical abuse.2 Additionally, reporting instances of sexual assault or domestic violence against a sex worker often results in the arrest of the victim, not the abuser, leading many sex workers to avoid interactions with police at all costs.
When dealing with the police, there are basic things one can do to stay safe, or at least make a stressful situation safer. People are less threatening to an officer if they keep their hands in view, don't make sudden movements, never touch the officers or their equipment, and remain respectful at all times. Anything that detainees might do to give an officer reason to argue that they are dangerous will work against them. Such behavior could even lead to an aggressive reaction on the part of the police, and a charge of assault against the detainee.
Undercover Police Officers
Sex workers are often arrested during sting operations involving undercover police officers posing as clients. Most liberal legal advocates would consider this entrapment, an illegal police tactic that’s use could act as a defense to prostitution charges. Many courts have found that these types of stings are legal because they define entrapment as police encouraging an individual to do something they ordinarily would not have done. These courts consider a defendant’s willingness to engage with a client, which is the officer, constitutes a manifestation of their pre-existing intent or willingness to engage in prostitution.3
There is no reliable way to identify undercover officers or informants. Police officers are legally allowed to lie about being police officers. Undercover officers are allowed to engage in criminal activity in the course of their job, including buying, selling, and doing drugs, getting naked and receiving massages from sex workers.4 Until March 2014, Hawaii undercover officers were even allowed to have sex with sex workers.5
Stops and Searches on the Street
Much of what could potentially transpire between a police officer and someone on the street is governed by the Fourth Amendment of the United States Constitution, including when an officer may stop someone and what that officer has the authority to do after stopping someone. Even if it appears that a person has been stopped by an officer for no reason, this is often hard to prove, as the officer only needs to meet a relatively low standard of proof in order to stop an individual.
An officer is prohibited from stopping someone solely based on gender presentation. An investigative stop of any individual must be justified by some objective manifestation of fact that the person stopped is, or is about to be, engaged in criminal activity.6 This “reasonable suspicion” test, however, is easy to satisfy. A court will examine the circumstances surrounding the stop, and officers can cite to things such as being in a “prostitution free zone,” the time of day, type of clothing worn, and their own expertise to support their findings of “reasonable suspicion.”7 The San Francisco Police Commission has adopted resolutions explicitly prohibiting officers from using gender presentation as a factor to meet this “reasonable suspicion” requirement.8
Just after someone has been stopped by an officer, it is a good idea to ask the officer if he or she is free to go. If the answer is yes, that person may walk away. If the police say an individual is not under arrest, but is not free to go, that person is being detained. Though being detained is not the same as being arrested, an arrest could follow.
An officer is required to have an explanation for such detention. You can ask the officer for an explanation of why you are being detained, though they may not answer your question. If the detention is later challenged, the officer will be required to provide the court with an explanation for the detainment. The person being detained does not have to answer any questions (though outside of California you may be required to identify yourself). Even though people who are being detained often feel that they are not being treated with respect, and may be stressed out or upset, maintaining a respectful and polite tone with the officer can go a long way toward staying safe. Especially if you are refusing to answer questions or identify yourself, use your own best judgment about how to speak to police officers.
Under the U.S. Constitution’s Fourth Amendment and California law, the police need a reasonable suspicion that a person is armed and dangerous in order to search their person.9 This type of search is referred to as a “frisk,” or a “pat down.” The purpose of a frisk is for the officer's safety and therefore can only be done in search of weapons, and not in search of drugs. An officer may pat down a person's clothing, which may include patting the area over or near the chest, buttocks, or genitals. Grabbing at or near genitalia, however, simply to establish a person's “true sex” is inappropriate and potentially unlawful, depending on the jurisdiction. Even if the police have no other grounds for suspicion, hostility or aggressive behavior may be enough for them to justify a search. However, consenting to a search is not required; consent may enable the police to conduct a much broader search than would otherwise be allowed by law.10 It is important that the person being stopped calmly assert that they do not consent to the search; this helps ensure that any evidence found will be inadmissible in court if the officer’s search is later ruled to have been illegal.
Note that if you are stopped while in a vehicle, the constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual officers involved.11 Furthermore, police officers making traffic stops may order passengers to get out of the vehicle pending the completion of a search.12
In a study conducted by Human Rights Watch, transgender persons reported being frequently stopped and searched by police officers due to profiling based on their gender presentation.13 In San Francisco, detaining an individual solely based on gender presentation violates police policy.14 However, a law banning “loitering with intent to commit prostitution” is frequently used to stop or arrest suspected sex workers, with at least 168 arrests occurring in San Francisco between May and August of 2011.15 Disturbingly, prior to October 2012, the possession of condoms was commonly used as evidence in the prosecution of suspected sex workers. In April 2013, the San Francisco District Attorney announced that a ban on this practice would be permanent.16
The California law banning intent to commit prostitution defines “intent” in an exceptionally broad manner, and conduct that may be used as evidence of intent includes having conversations with passersby or hailing the drivers of cars.17 It has been unsuccessfully challenged for being overly broad and vague.18
Treatment and Pronouns
Disrespectful and unsafe treatment by police officers is particularly prevalent with transgender community members. Acknowledging this reality, it can be difficult for detainees to know how to increase their chances of being treated safely and respectfully, especially in regards to pronoun use for transgender detainees. In San Francisco19 and in other municipalities, police officers are required to avoid harsh, profane or uncivil language as well as address a person with respect to their self-identified gender.
In San Francisco for instance, officers are instructed to respectfully ask individuals for clarification if uncertain of what pronoun to use; “e.g. ‘do you prefer to be referred to as ‘she’ or ‘he’?’” This means that a person arrested in San Francisco is entitled to be treated in accordance with a self-identified gender, regardless of anatomy, legal name, or gender marker. Other jurisdictions may or may not have such police protocols in place, but it is always a good idea to check just in case. If interacting with a police officer that is using the wrong pronoun, the detained person can correct this by saying to the officer, “I prefer to be referred to by female/male pronouns.” In other municipalities, it should be argued that such treatment is necessary to maintain the rights and dignity of the detainee. The law does not necessarily protect people against improper pronoun usage when the mistake is inadvertent. A persistent refusal to address a detainee in accordance with his or her gender identity, however, could be an actionable offense in a municipality such as San Francisco with a policy regarding pronoun use in place.
After making a stop, an officer might ask the person for identification. In California, the refusal or failure of a person to submit identification upon request cannot be the sole cause for arrest or detention, except where the driver of a motor vehicle refuses to produce a driver’s license upon request.20 In other words, unless an individual is pulled over while driving, it is legal to refuse to produce identification in California; and, in San Francisco at least, an officer may not threaten arrest in order to make a person comply.21 Individuals can also refuse to provide other personal information, such as address or immigration status. If arrested, an individual is not obligated to provide identification, but may be released more quickly if a name is provided, unless the individual is driving a vehicle, in which case refusing to provide identification can result in charges.
In some states, including New Mexico and Nevada, refusing to give a name can be cause for being detained or arrested under state law.22 Regardless of the laws in a particular state, police do not always follow the law, and refusing to provide a name may make an officer suspicious and lead to a person being arrested anyway. If an individual fears that providing a legal name would lead to arrest or harassment, such as having a legal name that is obviously not congruent with gender presentation for instance, that person can claim the right to remain silent and, if arrested, this fact can be helpful later. Individuals should not give any name that is not a legal name, as providing a false name can be considered a crime. Even if the name given is the only name that person uses, it could still potentially be considered a false name for purposes of charging the individual with a misdemeanor.23
Questioning can occur on the street or in an interrogation room and they can take the form of seemingly innocuous and simple questions to manipulate and intense drilling. Everyone has the right to talk to a lawyer before deciding whether to answer questions.24 If a person does agree to be interviewed, that individual has the right to have an attorney present. The lawyer’s job is to protect a person’s rights. Once a detainee requests a lawyer, the officer must stop questioning the detainee, and the individual should make any further contact only through the lawyer.25 If the person does not have a lawyer, the individual can still request to speak with one before answering questions. A detainee or arrestee should remember to get the name, agency, and telephone number of any investigator who visits, and give that information to the lawyer. The government must provide a free lawyer26 if the person is charged with a crime. The National Lawyers Guild or another organization may be able to help find a lawyer for free (pro bono) or at a reduced rate.
Some people might worry that insisting on remaining silent, requesting a lawyer, or refusing a search will make an officer more suspicious. This is not necessarily the case. Silence can demonstrate to officers an awareness of rights, thus providing additional incentive for the officers to follow procedural rules to avoid accusations of misconduct. As the Miranda warning states, “anything you say can be used against you in a court of law.”27 Generally speaking, law enforcement officials are supposed to read people their Miranda rights before questioning them.28 However, the National Lawyers Guild strongly cautions individuals that come into contact with officers to remain silent and assume that anything they say will be used against them in court.29 In June 2013, the Supreme Court ruled that a defendant must invoke his or her Fifth Amendment right to remain silent in order to restrict the use of that silence as evidence at trial.30 If you are questioned by police officers, it is a good idea to explicitly invoke your Fifth Amendment right to remain silent with the officer by stating “I am going to remain silent. I want to see a lawyer.”
Arrestees often believe that offering explanations will help resolve the problem, but it is impossible to know how statements made in front of an officer will be interpreted later. Often statements will result in causing more harm than good. The safest approach is for detainees or arrestees to calmly repeat that they wish to remain silent and do not consent to a search of their person or of their vehicle.31
Searches of the Home32
The Supreme Court has ruled that a person’s home is entitled to maximum search protection. For a search to be legal, the 4th Amendment requires an officer to have probable cause to believe that illegal activity is occurring inside the home and a signed search warrant from a judge. Consent to enter is a major exception to the warrant requirement. If consent to enter has been given, any items in “plain view” may be seized as evidence of illegal activity.
If police say they have a search warrant ask them to give it to you. Read it to see that it is signed, has the correct address, and a reasonably recent date. If you point out a flaw in a warrant, officers may ask you to let them in anyways. Clearly and formally state that you do not consent to a search. If officers insist on entering after you have refused to give consent, stand aside and allow them to enter while continuing to remind them you do not consent. Physical resistance to officers will likely result in you getting hurt and charged with resisting arrest or assault in an officer.
Do not answer any questions during their search. Take notes during the officer’s search, noting: officer names and badge numbers, names and contact information of any witnesses, and everything you see them search or seize, to the best of your ability. Police typically provide an inventory of what has been seized at the conclusion of a search. If not, request a copy but do not sign any statements.
The law allows greater authority to officers stopping people in cars. In this context, there are certain actions a person can take to increase the chances of a safe and less confrontational encounter with an officer. People being stopped should keep their hands where the police can see them. If stopped while driving a vehicle, the driver is required to show license and registration.33 A stop of a motor vehicle is considered by law to create limited exceptions to the warrant requirement. This means that officers can conduct a search without a warrant if they have probable cause to believe there is contraband in the vehicle, or if they believe someone in the vehicle is armed or poses a threat to officer safety.34 If officers begin to search the vehicle, it is best for a person to state clearly and calmly that he or she does not consent to a search.
Often, police will request consent to a search because they do not have probable cause to search without asking. After all, if they had probable cause, there would be no need for consent, other than to broaden the scope of the legal search. An officer may not conduct a full search of a vehicle without probable cause merely because he or she is issuing a citation.35 If an officer wishes to search a vehicle to find vehicle registration or identification documents, the officer may only conduct a limited search of locations where he or she reasonably believes they may be found.36 Officers may separate passengers and drivers from each other to question them, but both drivers and passengers retain the right to remain silent. It is best to always state clearly that you do not consent to a search. The police may search anyway, but an illegal search may lead to suppression of the evidence in court.
Searches Upon Arrest37
Upon arrest an officer may conduct a warrantless search of the arrestee and the area and objects in close proximity at about the same time as the arrest according to the Search Incident to Arrest (SITA) doctrine. The purpose is to protect the officer by seizing any weapons and to prevent the destruction of evidence on the person.
If police come to the door of your home or place of business with an arrest warrant, step outside and lock the door, as they will be able to search any room you enter. If you are arrested in a car, police are allowed to search the inside of the car, including containers, but not the trunk. However, a car trunk can later be searched during impound inventory.
Prior to June 2014, courts were split on whether an officer could search through the contents of a person’s cellphone pursuant to the search incident to arrest. Now, however, officers are required to have a warrant before searching the contents of an arrestee’s cellphone.38
Password-protect electronic devices to prevent potentially unconstitutional privacy invasion. For stronger protection, consider using file and disk encryption software. For more information on how to protect your electronic anonymity and privacy visit: https://www.eff.org/deeplinks/2014/07/protecting-your-anonymity-how-sex-workers
In San Francisco, after being arrested the arrestee is often transported to a different destination than where the arrest took place. Transport is a stage of the process where sex workers and transgender people are particularly vulnerable to police misconduct. The San Francisco Police Department has enacted a policy to mitigate harm to women and transgender people during transport. This policy, General Order 2.01, Rule 36, “Transporting of Females and/or Transgender Individuals,” applies to women and “any transgender person or individual whose gender identity is indeterminate to the [officer] and not clearly articulated by the individual.” San Francisco police orders state that when officers transport a female or transgender person, they must notify the Communications Division of the Department of the vehicle's starting mileage, the location from which they are leaving, and the destination. When the officer reaches the destination, that officer must immediately notify the Communications Division with the vehicle's ending mileage.
If a female or transgender detainee is being transported and this rule is not being followed, the detainee can self-identify to the officer, thereby making the officer aware that Rule 36 applies. An officer who does not follow this procedure could attempt to escape liability by stating that he or she was unaware that the detainee was female or transgender at the time of transportation because the detainee did not self-identify. Ultimately, it is the arrestee's decision to disclose or not; arrestees may feel that disclosing prior to or during transportation may create more risk than it will prevent, but others may feel that disclosing prior to transportation will increase the chances that rules will be followed and documented, making any possible misconduct easier to prove.
It is important to remember that even when there are rules in place, these rules are not always followed. Ultimately, individuals should rely on their best judgment in a particular situation. Some arrestees would prefer to cooperate even when not required to in order to de-escalate a situation if they fear retaliation by an officer, particularly if there is no one around to witness or if the officer seems particularly aggravated. Document any suspected violation of rules and consult your attorney or consider filing a misconduct report if you believe your rights, as provided by these rules, have been violated. Again, individuals outside of San Francisco should check for the rules and policies in their jurisdiction to see what, if any, protections are offered.
Booking, which is the process of being admitted into detention after being arrested, can be complicated and stressful for sex workers and transgender people. If a transgender arrestee has not already disclosed his or her transgender status or identity, the booking process is where disclosure might occur regardless of the arrestee's wishes. The booking process involves paperwork where the sex on a person's driver license or state ID is recorded, and where a person's legal name is demanded.
When an arrestee is brought to the detention center, an officer will review the individual’s legal documents to see if that person meets the admission requirements of the facility. The general booking process has several steps where transgender or intersex status might be disclosed whether or not the individual wants this information known. One general step is recording of information, or the booking form. The booking form will ask for either male or female gender as well as driver license information. Similar to a job application, the form will request your address, work or school information, and emergency contact. The name on the driver license is the name that an individual will be booked under. However, if the name on your driver license is not the name that you prefer to be called, you can let the officer know when the form is being filled out, as policy requires the police to use your preferred name. It is possible that the officer will disregard your request, but if you feel safe and are comfortable with voicing your preferred name, do so.
After the intake form, arrestees will usually have their mug shot taken and property collected. The next step is often fingerprinting, which will likely connect your fingerprint to the gender/sex indicated on the booking form. A nurse may screen the arrestee for potential vulnerability to sexual assault and if that person has tendencies to act out with sexually aggressive behavior. If either of these are present, the nurse will notify the Associate Warden of Operations. Being a transgender individual is often considered within the scope of vulnerability to sexual assault.
However, as always, be mindful of who is making the assessment and your safety during that process. Individuals may feel that disclosing to the examining nurse is a safer choice than disclosing to the booking officer. Although it often feels like there is no safe time to disclose transgender status or identity while detained, individuals may choose to disclose during the booking process before an unclothed body search if he or she believes that this search will be uncomfortable or unsafe. Prisoners may wish to request strip search staff that makes them feel more comfortable during the process (for example, female staff strip searching a male-to-female inmate), but a refusal to accommodate such requests does not necessarily mean a prisoner’s rights have been violated by prison officials.41 However, searches are required to be reasonable, and may violate the Fourth Amendment if they are conducted in an excessive, vindictive, or harassing manner.42
Getting out of Jail43
There are several procedures through which you can get out of police custody after an arrest. Instead of bringing you to jail, officers may issue a citation, much like a traffic ticket promising to appear in court, and release you. Sometimes people are released on their own recognizance, “O.R,” in which case they simply promise to appear in court for scheduled hearings without paying to pay bail. A defendant usually requests to be released O.R. at the first court hearing. If a judge denies the request, a request for low bail is then made. Usually you will only be released OR if you can prove you are not a danger to the community and are not a flight risk. Factors that may convince a judge to grant O.R. include:
- Having family members living in the community
- Having lived in the community for a long time (current and old records of lease, rent receipts, utility bills, phone bills to show length of time)
- Having a job (employment contracts, pay stubs, records of volunteer work)
- School enrollment (school records, school ID)
- Membership in community organizations or churches
- Having little or no past criminal records, or any previous criminal problems are minor and old
Assembling a packet of documents to show the judge that you have long-term ties to the community is helpful. You will need the originals in addition to copies to give to the court. Generals character reference letters with phone numbers from landlords, roommates, clergy, and employers and doctors outlining any medical conditions or appointments necessitating release are also valuable.
The most common way to get out of jail is by posting bail. Bail is cash, bond, or property you give to a court to ensure that you will appear for court appearances. If you don’t show up, the court keeps the bail and issues a warrant for your arrest. A judge sets bail amount and jails usually have standard bail schedules for the most common crimes. The bail schedule for San Francisco county can be found here: http://www.sfsuperiorcourt.org/sites/default/files/pdfs/2012%20revised%20March2013% 201st%20bail%20schedule.pdf
Bail can be cash, check, or property worth the full amount, which will be returned (minus an administrative fee) when the case is over and all court appearances have been made. Bail can also be a bond, a guaranteed payment of the amount, purchased through a bonds dealer. Bond sellers generally charge 10% of the total bail amount and often require collateral, a financial interest in your property, which they can cash in on if you fail to appear for a court appearance.
If you are not a US citizen, a criminal conviction can have serious immigration consequences. The extent of these consequences is dependent upon your present immigration status, the outcome of the case, and the types of crime(s) you were charged with. Generally, the more serious the crime and the more temporary/illegal your immigration status is, the more likely you will be deported.
It is incredibly important for non-US citizens to immediately seek help from an immigration attorney in addition to a criminal defense attorney if arrested. While a criminal defense attorney may give excellent advice in helping navigate the criminal justice system, their advice may lead to a result way worse for you.
The federal Immigration and Nationality Act states any non-citizen living in US can be deported (regardless of how long you’ve been in the country, whether you have a dependent child who is a US citizen, whether you are a legal or illegal immigrant) if they are convicted of certain criminal offenses.45 In California, “deportable crimes” include:
- Crimes of moral turpitude, which can include anything a court finds to be “antisocial behavior that harms others”
- Aggravated felonies, which includes crimes related to the operation of prostitution business or pimping
Additionally, you can be deemed inadmissible (not deportable) if you came to the US to engage in prostitution, engaged in prostitution within 10 years of application for a visa or admission, or acted as a pimp.46 For these, you do not need to have been convicted in order to become inadmissible.
When plea-bargaining be particularly careful about submitting a guilty or no contest plea. These count as convictions, which can have major immigration consequences. Accepting a diversion program (or other procedural equivalent including “deferred prosecution or “dispositional continuance”) in lieu of jail time usually counts as a conviction for immigration purposes as well. Again, it is imperative you contact an immigration attorney to work with your criminal defense attorney in preparing for your legal defense. A list of organizations specializing in immigration law can be found in the resources section of this manual.
In the San Francisco Bay Area, you may be eligible to have your criminal record improved through an initiative called the Clean Slate Program. Governmental agencies and nonprofit organizations across California and throughout the country have begun offering similar criminal record improvement programs and initiatives. Individuals interested in improving their criminal record should research if such programs are offered through their local courts, county public defender’s office, or through nonprofit legal aid groups. People who have been arrested, convicted of a crime, or been found delinquent in Juvenile Court could be eligible to have their criminal record "cleansed" by a simple process. Some records, such as marijuana possession and juvenile offenses, can be totally destroyed. Other records can be changed from felony to misdemeanor status.47 Information about the San Francisco Clean Slate Program can be found here: http://sfpublicdefender.org/wp-content/uploads/2013/02/Application.Packet.Feb_.2013.pdf.
Through initiatives modeled after the Clean Slate Program, some cities, counties, hospitals, and nonprofit groups now also offer free or low cost tattoo removal services for individuals seeking employment who are facing the stigma associated with visible tattoo markings.
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Id. at 474. ↩
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U.S.C.A. Const. Amend. 5. ↩
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Riley v. California, 573 U.S. ___ (2014) ↩
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