Last week I wrote about a scheme by the Los Angeles City Council to send letters to those apparently soliciting prostitutes. These “Dear John” letters were made more grotesque by the idea, widely reported in the local press and now somewhat walked back, that the city would partially rely on Automatic License Plate Reader (ALPR) technology.

However, that technology wasn’t the only objection I had to the scheme — ALPR would only serve to automate the process of enlarging the scale of, and reduce the effort required to mount a letter writing campaign.

Councilwoman Martinez’ proposal is to capture license plates (either automatically with ALPR, or with citizen observers, or police officers) of vehicles that are driven by someone behaving in a manner consistent with someone engaging in the solicitation of prostitution.

This set off a wave of anger among civil libertarians and privacy proponents (myself included).

So in a December 2nd post on her website, 6th District Los Angeles City Councilwoman Nury Martinez (the author of the bill) stated,

“While we can’t discuss the specifics of LAPD’s implementation of this tool, there will need to be probable cause to generate a letter — you won’t simply get a letter because you’re in the area.”

Ah. So this plan begins with a non-transparent process upon which this Task Force apparently relies to single out those who get a scarlet letter in the mail. With probable cause to generate a letter. . .

“Probable cause” sounds very technical and all, you know, Law & Order, but please allow me to unpack that just a bit and define some terms.

If a police officer observes a person engaging in behavior that, in the officer’s training and experience is consistent with the behavior of soliciting prostitution, that officer would have a reasonable suspicion that that person was committing a crime. This gives the officer the right to investigate whether that individual has engaged in a crime.

And, generally speaking, if the officer witnesses both a sex act and money changing hands between the parties, he’d have probable cause to believe that the crime of prostitution may have occurred among these individuals, and that officer may arrest the individuals based on this probable cause. It’s not proof (what if they’re just friends and he’s giving her money to pay for her mom’s root canal?), but it’s probable cause.

What’s missing? Two important things.

The letter.

From the example above, remember that reasonable suspicion or probable cause is required to conduct an investigation or make an arrest. A letter is not an arrest or an investigative tool. It is certainly not a Subpoena (which would be an investigative tool). This letter is sent to the home of the owner of the vehicle, not necessarily the driver.

Not only is this letter likely to be read by someone other than the accused “John”, it probably is the intent of the Council that this should happen. Mind you, as a police officer, I am not even allowed to leave a message on someone’s voice mail about what a case is about, lest someone else hear it. And — oh! — here’s a letter from that nice Nury lady, telling me my boyfriend or husband is bedding down a prostitute.

But in the Councilwoman’s words, the letters would simply “…encourage potential “Johns” to stay away from these areas and cease that activity. LAPD is implementing safeguards to target these letters to just those that warrant a reminder that prostitution is illegal.”

In other jurisdictions, some of these letters have been incredibly nasty. In Escambia County, FL, for example, the letters included the phrase:

“The above named person and his/her significant other may have been exposed to a sexually transmitted disease…”

In Raleigh, the letter was a bit more subtle, but … still:

On [DATE] at approximately [TIME], a [MAKE] [MODEL] registered in your name with North Carolina license plate [LICENSE_PLATE] was observed at [STREET_BLOCK], which is an area where residents have expressed concerns about crimes that affect their quality of life, including prostitution and drug dealing.

This kind of transparent shaming tactic isn’t new, and it’s not limited to prostitution. In 1976’s Paul v. Davis, the US Supreme Court reviewed the case of Edward Charles Davis III, whose mugshot had been placed by the police in a flyer sent to local businesses to warn them of shoplifters. At the time the flyer had been sent, Mr. Davis had been arrested but not convicted of shoplifting. He had pled not guilty. But out went the flyer.

Soon after it was distributed, Davis’ charges were dismissed. Davis filed a 1983 Civil Suit on the basis that every shopkeep in town (a) had his picture and (b) thought he was crook.

But, at least Davis had been arrested and charged! In Councilwoman Martinez’ scheme, that’s not the case; she seeks to leap right to the letter without pausing even to arrest anyone.

Letter from Escambia County Sheriff to a “John”. Published in, An Overview of Sending Letters To Homes of Sex Buyers in the United States, from the Study, “A National Assessment of Prostitution and Sex Trafficking Demand Reduction Efforts” (2012)

Now, I am not a lawyer or your mom, but while the Davis ruling probably makes it legal for the government to send a letter once they are sure that the car was driven by someone on whom the cops have probable cause to believe committed a crime, give me a flippin’ break.

If Councilwoman Martinez is gonna get all tough on crime; if she really seeks, as she states, to, “take down the criminal enterprise behind this prostitution problem and target the “Johns” that solicit these girls,” then she should re-consider the efficacy of this proposed letter-writing campaign.

No lawman in the history of ever has leapt up and said, “I’ve got him! Janie … take a letter!”

This governmental moral discouragement is presented, therefore, in a manner to embarrass and shame the recipient and his friends or family.

(It is precisely for this reason that I disagree with those judges who make people convicted of petty shoplifting walk around the streets with a sandwich board saying, ‘I stole from Acme Market’).)

The councilwoman’s point about prostitution being a scourge is legitimate. And her statements that prostitution is not a victimless crime are legitimate and laudable.

The vehicle.

Probable cause is not developed against a vehicle in this case. The only time you see something like, State of California v. a 1979 Ford Pinto is in an asset forfeiture case, which is civil, not criminal. And if there is reasonable suspicion or probable cause here, it is reasonable suspicion to investigate or probable cause to arrest and/or search.

So, what is to be done?

If the cops have probable cause (I say as a cop), how about, we don’t send a letter, we go arrest the guy.

That is the way it is supposed to work: detectives surveil these “known prostitution areas” seeking behavior that raises reasonable suspicion, take notes of what was observed, and then investigate. Find out the owner of the vehicle. Find out whether there are warrants or wants on it. Interview the man observed and ask what he was doing.

If probable cause develops during this investigation, arrest the guy. Once an arrest has been made, it can be published in the newspaper’s police blotter — that’s much more public shaming than a letter to the wife, and hey, this saves the cost of postage, is 100% effective at removing that John from the neighborhood on that incident and …

It’s legal.

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LA’s City Council: We’ll get Probable Cause Before we Run Your License Plate and Send you a Shaming Letter. We Can’t Tell You How, though…