In Allegheny County, People Arrested With Cell Phones Can Be Charged With ‘Possessing Instruments of Crime’

Advocates say these charges endanger sex workers and urge the police to stop using them.

In Allegheny County, Pennsylvania, prostitution arrests often begin and end with a phone call. Officers may call the number in an alleged prostitution ad, set up an appointment, and then seize the cell phone that matches the number from a nightstand or from a dresser, as a county vice officer did at a Red Roof Inn in May 2017, according to a police report. Sometimes officers search for phones, as Moon Township police did, according to a July 2017 arrest report that said they seized two phones from a woman at the Sheraton. In dozens of prostitution cases in the county that year, police used a woman’s phone against her as evidence of a crime.

That’s dangerous, says Gabrielle Monroe, an organizer with the Sex Workers Outreach Project (SWOP) Pittsburgh who notes that phones actually help keep sex workers safe by allowing them to get help in an emergency.

“The message to me they are sending to sex workers is they don’t care about their well-being and their safety,” she told The Appeal.

Monroe has visited the county’s special prostitution court regularly since July. A month earlier, the Pittsburgh Tribune-Review had reported that sex workers were being charged with “possessing instruments of crime” if they were carrying condoms when police arrested them.

The Appeal reviewed Allegheny County police records from 2016 and 2017 and found 260 prostitution cases, about 52 percent, where police also charged someone with possessing an instrument of crime. Other offenses can carry an instrument-of-crime charge as well, but that happens far less frequently; about 5 percent of burglary cases in 2016 and 2017 carried the added charge, as did just over 1 percent of simple drug possession cases.

After an uproar from advocates—led by SWOP Pittsburgh, and joined by the Women’s Law Project, Planned Parenthood of Western Pennsylvania, the ACLU of Pennsylvania, and the Pittsburgh Democratic Socialists of America—over the public health implications of discouraging condom use, Allegheny County police said in June they will no longer use the “instrument” charge against those with condoms. (Police in much of Pennsylvania are able to file criminal charges and even resolve low-level offenses before a case gets to a district attorney.) Other jurisdictions, like New York City and the state of California, have also stopped using condoms as evidence in at least some prostitution cases.

But the Allegheny County Police Department’s new policy hasn’t been communicated to sex workers themselves, said Susan Frietsche, senior staff attorney at the Women’s Law Project. “There has not been any public outreach, as far as I know, to reassure sex workers and others that possession of condoms is no longer chargeable as a crime.” (In Washington, D.C., for example, after police stopped using condoms as evidence in prostitution cases, they handed out cards while on patrol that explained this to sex workers.) The Allegheny County police did not respond when asked if they were planning outreach.

Even if police say they aren’t charging condoms as instruments of crime, advocates say, cell phones are still fair game. According to a Women’s Law Project analysis of 2017 cases where both prostitution and instrument of crime were charged, at least 84 percent involved cell phones charged as an instrument of crime. And the police have not guaranteed they won’t use condoms as evidence in prostitution cases. “This means that it still isn’t safe for sex workers to possess condoms or cell phones,” said Frietsche.

If sex workers face steeper criminal charges for having cell phones, they told The Appeal, they will be less likely to carry their phones while working. This means they won’t be able to call for help if faced with dangerous customers, for instance, or when encountering law enforcement. Jessie Sage, co-founder of Sex Workers Outreach Project Pittsburgh, said her group’s community members use their phones not just for emergencies, but to take photos of a customer’s identification or license plate. They may also place their phone in view of customers just to let them know they could call help.

Monroe, the court watcher with SWOP Pittsburgh, is also a sex worker and was arrested in a 2004 sting in nearby Westmoreland County, charged with prostitution and with “possessing a device for intercepting communications”—a cell phone. The cell phone charge was dismissed, but she pleaded guilty to the prostitution charge. At the time, they took her cell phone, she said, and recalls only getting it back after completing probation years later. Now, she said, sex workers “are going into working situations without cell phones, so that way they’re not catching the worse charge.”

Allegheny County DA Stephen Zappala has said instrument-of-crime charges are “usually withdrawn” by his office “when brought to our attention.” The office declined to comment further for this story. The Allegheny County Police Department did not respond to questions by publication time.

But police continue to use the charge against sex workers, said Dena Stanley, founder and director of TransYOUniting in Pittsburgh, an advocacy group, and prosecutors continue to make use of those charges. “The more charges they have, the easier it is for them to give you a plea deal,” Stanley explained. “With trans women, I don’t know about everybody else, when we get arrested, they search for your phone, immediately.”

SWOP Pittsburgh is now demanding that Allegheny County police and prosecutors stop using instrument-of-crime charges for cell phones and commit to ending the use of both phones and condoms as evidence so that sex workers can protect their health and safety. Even if prosecutors say they often drop instrument-of-crime charges, said Sage, such charges still discourage safer work practices. “That’s true with the condoms and it’s true with the cell phones.”

Additional research by Joshua Vaughn.