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State of Uncertainty: Can Police Pull You Over For Being Out During the Stay-at-Home Order?

Posted by Ian M. L'Heureux | Apr 15, 2020 | 0 Comments

In late March, Governor Mills issued the first emergency stay-at-home order aimed at containing the spread of COVID-19, also known as the coronavirus. Though most of the country and the economy had already voluntarily shut down, the Governor's  order actually made it a violation of the law to venture outside of your home for a purpose that is not deemed to be “essential.” She then followed that up with an order mandating that all out of state visitors to Maine quarantine themselves for a period of two weeks. Most recently, the Governor extended Maine's “civil state of emergency” until May 15, 2020 and has left open the distinct possibility of extending it even beyond then. The serious tone of the order and the unprecedented nature of the nation's response to the current pandemic have cause many people to fear that this means police will be pulling people over left and right to enforce the orders and that they need to be carrying around official documentation of their “essential” status. The truth, however, is of a much less dramatic nature.

At first glance these orders sound rather dramatic and quite serious indeed. The plain language of the order, and even its name, implies it will be strictly enforced and conjures images of police officers pulling over everything that moves to question citizens about their employment and where they are going.  The good news is that, despite popular speculation that we have become a "police state," the Police don't actually have any extra authority. Not only that, but most law enforcement agencies have expressed a disinterest in aggressive enforcement of the stay-at-home order -- at least for now.  Sheriffs from several counties including York, Cumberland, Franklin, and Androscoggin have all stated publicly that officers will not be pulling people over simply for being outside, and that even if they find people in violation of the order, a civil or criminal summons is going to be the measure of last resort.

There is always the possibility, however, that this could change. If you have heard about incidents such as the California paddle board arrest and you are wondering when that will become the norm her in the Pine Tree State, keep in mind that you have certain rights guaranteed to you by the Constitution and no executive order by the Governor can change that. Specifically, to effectuate an investigatory stop (traffic stop or otherwise) a police officer must have a legally sufficient reason to make that stop. The standard of that legally sufficiency is called reasonable articulable suspicion. The standard is (for the most part) as simple as it sounds. The Officer must have a suspicion (not just a hunch) that he can articulate (explain in plain language) that is reasonable. The question therefore becomes whether it is reasonable for a police officer to believe a crime or civil infraction is being committed. Whether or not it is reasonable is a question that depends heavily on the specific context of each individual scenario. If a police officer wanted to pull a person over under suspicion of violating the stay-at-home order and that person is otherwise obeying all traffic laws and there does not appear to be any outward sign of law-breaking, he is going to have a hard time defending that stop in Court, particularly given some of the facts of the Governor's stay-at-home order.

 As you can see here, there are hardly any businesses that aren't considered “essential” under the Governor's order. Even if you insist on being 100% compliant with the order at all times, chances are you won't be able to run afoul of the order unless you make an actual directed effort to do so. Consider for a moment that even Dunkin Donuts is open as an essential business. So while one might not think that Dunkin is an absolute necessity for survival, you can still go get your morning coffee without violating the order. What a world.

Now, given the rather wide constraints the government has placed on the word “essential,” how is a police officer to know that any particular person out on the road is not out for an “essential” purpose? They can't. If a police officer pulls you over on suspicion of violating the stay-at-home order solely on the basis of being out on the road then he has violated your Constitutional rights. More importantly, in the event that such a traffic stop results in discovering evidence that is used to charge you with a crime, that evidence can likely be suppressed with the help of a competent criminal defense attorney.

Any interactions with Police should be business as usual. Always remember to be polite, be respectful, but understand and exercise your rights. Always remember that your right to remain silent means you do not have to answer any of the officer's questions, even ones that sound conversational like questions about where you are going and where you are coming from. The only information that you are absolutely required to give to the police during a traffic stop is the information on your valid driver's license. Just as important, you have the right to refuse an officer his request to search you and your vehicle. Officers will routinely ask for consent to search just on the odd chance that something will turn up (usually after profiling you and deciding that you have something to hide). If he has a legitimate reason to search your vehicle, then he can get a warrant. Even if you have nothing to hide, that is no justification for giving up your rights. 

In essence, Governor Mills's emergency orders should not change your interactions with police. Police cannot suddenly stop everything that moves simply because the government has used the magic phrase “state of emergency.” Just remember that even if police in Maine step up the intensity of their enforcement of the stay-at-home order (as in California), your rights do not change. Carry on, don't panic, and stay safe out there. 

About the Author

Ian M. L'Heureux

Ian L'Heureux is originally from Sanford, Maine and graduated from Norwich University, The Military College of Vermont, in 2014 with a Bachelor of Arts in Political Science. Afterwards, he worked for a year as a Juvenile Program Worker at Long Creek Youth Development Center before entering the Un...

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