In response to the spread of COVID-19, many states issued quarantine and stay-at-home orders. Quarantine orders are generally directed at anyone who has recently traveled out-of-state. Stay-at-home orders typically prohibit all but essential travel for everyone in the state. But how are states enforcing these orders on the roadways?
A number of states and local governments have set up law enforcement checkpoints on highways. And in some areas, police are reportedly pulling over individual vehicles to investigate stay-at-home order violations or inform vehicle occupants of quarantine requirements. These enforcement measures, though aimed at "flattening the curve" of infections, raise constitutional questions that are causing some to doubt their legality.
Under federal law, the 4th Amendment to the U.S. Constitution governs searches and seizures. The 4th Amendment generally requires that any search or seizure conducted by law enforcement be "reasonable." In order words, police can't just stop or search someone (or the person's property) without having adequate evidence of criminal activity. However, the intricacies of 4th amendment protections vary depending on the type of search or seizure.
A vehicle stop is considered a seizure for purposes of the 4th Amendment. However, 4th Amendment protections are different depending on whether the driver was pulled over by police or required to stop at a roadblock or checkpoint.
Typically, a vehicle stop is lawful only if police have a reasonable suspicion that the driver or someone in the vehicle has broken the law. For example, police can lawfully pull someone over who they observe to be speeding. On the other hand, police aren't allowed to stop someone just to investigate possible wrongdoing. For instance, an officer couldn't lawfully conduct a traffic stop just to ask the driver if he or she has a valid license.
Police certainly have the authority to enforce state emergency orders related to the coronavirus. But to lawfully stop a vehicle, police presumably still need a reasonable suspicion to believe the driver or someone in the vehicle is in violation of one of the orders. In most instances, police wouldn't have that kind of information prior to making a stop. Stay-at-home orders allow travel for essential purposes, and police generally have no way of knowing a driver's destination or purpose.
Police in some areas have reportedly been pulling over vehicles with out-of-state plates to inform the occupants of quarantine requirements. However, it's debatable whether courts would find these stops justified. Courts have often said the "touchstone" of the 4th Amendment is reasonableness. So, the question would be whether it's reasonable to believe someone might be violating a quarantine order just because he or she has out-of-state plates.
Although law enforcement normally needs reasonable suspicion to stop a vehicle, in limited circumstances, courts have said law enforcement checkpoints are permissible. The basic rationale is that the utility of checkpoints—for instance, for the purpose of catching drunk drivers—sometimes outweighs the inconvenience to drivers.
After balancing the interests involved, the U.S. Supreme Court has approved of temporary sobriety checkpoints and permanent immigration checkpoints near the Mexican border. And other federal courts have said that roadblocks set up in emergencies like hurricanes to enforce evacuation orders and the like are reasonable under the 4th amendment.
Coronavirus checkpoints present a new factual scenario. But the general legal framework used to determine the constitutionality of checkpoints would presumably apply. In past cases, the Supreme Court has assessed the legality of checkpoints by considering:
So, how might these factors play out with COVID-19 checkpoints?
Given the current circumstances and that coronavirus-related orders followed declarations of emergency by state governors, most courts would probably agree these checkpoints serve an important public health interest. While there might be some debate about the effectiveness of checkpoints in accomplishing their objective, courts might give state and local governments quite a bit of leeway in making this call. And, if past cases are any indication, it's improbable that courts will find COVID-19 checkpoints unlawful based on inconvenience to drivers.
However, the facts of every situation are different and, with the coronavirus pandemic, we're in uncharted territory in many respects. So, how courts will ultimately rule on the legality of COVID-19 checkpoints remains to be seen.