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Probable Cause During the COVID-19 Crisis: Will I get Pulled Over?

Amidst the “stay at home” orders being issued all over the country, many citizens are left wondering whether cops will start pulling people over to check if they are engaging in a permitted act.

Whether a traffic stop is legal is rooted in the Fourth Amendment to the U.S. Constitution’s protection against unreasonable searches and seizures. Car stops are generally permitted so long as an officer has “reasonable suspicion” that a driver has committed a criminal violation. An officer is then permitted to make an arrest if state law provides that such an arrest is legal. An executive order is in fact treated as law, but the reasonableness of a stop based on suspicion of violating “stay at home” orders is up for debate.

Given we are operating in unprecedented territory, it’s difficult to decipher what activity a court would hold to be reasonable. However, the exceptions found in many “stay at home” orders such as allowing for essential employees to be traveling lend support for an argument that stopping citizens based on suspected violations of the order is unreasonable.

Despite the uncertainty of the legality of such traffic stops, public policy and statements made by government authorities shed light on whether such measures are likely to be taken. Notwithstanding the Governor’s order explicitly stating, “Local authorities are encouraged to determine the best course of action to encourage maximum compliance,” traffic stops do not appear to be the “go-to” choice for law enforcement.

The Tri-County Health Department, which serves Adams, Arapahoe and Douglas counties, announced that residents who work at essential businesses will not need to carry proof from their employers that they are permitted to be out.

Denver, Douglas, and Arapahoe county law enforcement officials have indicated they will not pull over drivers to determine whether they are engaging in a permitted activity. Arapahoe County Sheriff Tyler Brown said “Us checking to see if they are in an essential job category is not probable cause. The Constitution is still here.”

Arapahoe District Attorney George Brauchler has voiced criticism of orders and stated that strict enforcement could lead to ridiculous situations. Brauchler joked that people in the bathroom would have to report someone who didn’t wash their hands for long enough. Brauchler also stated he has encouraged personnel in his district to educate rather than arresting or citing for not obeying the orders.

According to 9 News, a City of Denver representative has indicated they will not be actively pulling people over to question their travel destination. If there is probable cause to pull someone over for a traffic infraction or other offense, however, that person may be asked about the reason for their travel.

Police departments in metro Denver have not reported any serious violations. To the contrary, it has been reported that overall crime is down almost thirty percent since the beginning of March.

If you have experienced traffic or other police stops as a result of the COVID-19 “stay at home” orders, or have questions about what it means for you, please contact Cantafio & Song PLLC for a free consultation today.

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