Fifth Amendment and Mandatory Shelter in Place
<p>Several counties in California have issued a shelter in place order due to the ongoing COVID-19 pandemic. For example, see a Santa Clara’s order <a href="https://mcusercontent.com/b7704d67c212a9bf7f81ccf82/files/a030398c-3dc5-458b-962f-af507aca04c7/Final_Signed_SCC_Order_to_Shelter_in_Place.pdf?mc_cid=cfdedb3fdb&amp;mc_eid=90f71140bc" rel="nofollow noreferrer">here</a>.</p>

<p>The order states that individuals have to shelter in place. However, it lists multiple exceptions. If a police officer or other authority empowered to enforce this law asks you why you are outside, do you have to tell why you are outside or does the officer have to have reasonable suspicion you are in violation of the shelter in place order in order to detain you? This seems to be in violation of the concept that exercising your rights does not give grounds for reasonable suspicion or probable cause. Does an officer need probably cause that you are in violation of the order to arrest you? Or is it assumed that if you do not tell the officer what you are doing outside then your behavior is in violation of the order?</p>

<p>The principle of constitutional law is that in order to arrest you, the officer would need probable cause. Certain acts are in themselves violations of the order (being closer to another person that 6 feet, illegal sneezing). Walking in public does not <em>per se</em> constitute a violation. In order to briefly stop a person walking on the street (a "Terry stop"), the officer needs a reasonable suspicion that the person is in violation of the law. That means there has to be a reason, and a gut feeling does not count. An officer would not (legally) be able to stop every person they see walking down the street / driving, and demand an explanation of where they are going. If a person is just aimlessly wandering down the strees with friends (even if they are sufficiently separated), that could suffice to justify a stop, given the limited legal excuses for being outside your home.</p>

<p>In practice, reasonable suspicion will usually be self-evident in the face of a shelter in place order, and hence will justify a Terry stop.</p>

<p>Neither the reasonable suspicion standard or probable cause standard are modified per se in a health emergency. But, there are circumstances when a health emergency might justify a checkpoint at which everyone is searched without suspicion if that was narrowly tailored to a reasonable public health purpose, since even a small percentage of non-compliance could have immense consequences and there may be no other option.</p>

united-states california