March 25, 2020

Law Enforcement Searches and Seizures During the COVID-19 Pandemic

The COVID-19 pandemic has millions of Americans under orders to stay home and/or restrict their travel and other activities. In times of emergency, state and municipal authorities have vast powers to close institutions and forbid public gatherings to prevent and stop epidemics. Understanding your rights — including those pertaining to your place of business, coworkers and employees — is critical to preparing a practical approach to any law enforcement interactions and minimizing conflict in a time of restrictive emergency orders.

Generally, contravening such orders may constitute a crime — a violation of a state’s public health statutes and any corresponding local order requiring individuals to stay at home. Law enforcement officers will likely have authority to enforce these orders through stops, searches, arrests and other measures, and those who violate orders imposing travel restrictions, stay-at-home requirements or closure of non-essential businesses may be subject to criminal liability. These emergency order requirements may also be enforced by administrative notices of violation and civil litigation.

Most emergency orders issued thus far have contained express exceptions for those providing “essential services,” including hospitals and their nurses and doctors. And most stay-at-home orders, despite containing otherwise sweeping requirements, have exceptions for many businesses, including those on the Cybersecurity and Infrastructure Security Agency (CISA) critical infrastructure employee list. Individuals working for essential businesses or who facilitate the provision of essential services must be aware of the general powers of law enforcement to stop, and question, those lawfully traveling between their homes and the places they may rightfully work.

Law Enforcement Stops and Searches and the Fourth Amendment

For law enforcement to stop someone under the Fourth Amendment of the U.S. Constitution, the officer must have reasonable suspicion. With a broad order in place requiring all non-exempt individuals to avoid unnecessary travel and stay at home, reasonable suspicion may be readily established by individuals’ mere presence on the public highway. Relatedly, law enforcement might constitutionally establish roadside checkpoints to determine the lawfulness of travelers’ presence in public during such emergencies.

But under the Fourth Amendment, law enforcement must have more than reasonable suspicion to search a stopped individual. That additional intrusion on the individual’s freedom must be supported by specific and articulable facts that allow a rational inference justifying the degree of the additional intrusion — common examples include the observed presence of firearms or the smell of illegal narcotics.

Otherwise, the stop should be limited, and the individual should be allowed to demonstrate compliance with the emergency order (for example by identifying the exemption applicable to the individual’s travel). Unless the stop rises to the level of an actual arrest, where the individual is in custody and not free to leave, law enforcement need not issue a Miranda warning during the stop. The individual nevertheless retains the right to remain silent under the Fifth Amendment of the U.S. Constitution.

Contactless Temperature Checks and ‘Exigent Circumstances’

The extent to which a law enforcement officer may lawfully perform a contactless temperature check of the individual’s temperature for investigatory purposes (e.g., to verify if the individual is potentially ill with COVID-19 or should be in quarantine) remains uncertain. Courts have held that physical examinations of aspects of persons’ bodies that are normally hidden implicate privacy interests protected by the Fourth Amendment. Therefore, an argument could be made that, absent a stopped individual’s permission, and without specific facts demonstrating probable cause, an officer may not constitutionally take the individual’s temperature.

However, the Fourth Amendment’s constitutional restrictions relax (1) for administrative searches and (2) under “exigent circumstances.” It could be argued that these doctrines support law enforcement’s ability to take warrantless, contactless temperature checks during this public health emergency, particularly if the state or municipality issues an order prohibiting symptomatic individuals from leaving their homes.

(1) For administrative searches, such as property and health inspector inspections that involve only a limited intrusion on an individual’s privacy and are not conducted to investigate a crime, a warrant may be obtained without a traditional probable cause showing if reasonable legislative or administrative standards for conducting an inspection are satisfied.

(2) On other occasions, “exigent circumstances” make the needs of law enforcement so compelling that warrantless searches are deemed objectively reasonable — for example, when law enforcement enter a person’s home without a warrant to render emergency aid. It is unclear whether a state’s declaration of emergency and stay-at-home order would constitute the type of exigent circumstances sufficient to render a warrantless, contactless temperature check constitutional.

As a practical matter, employers should encourage their employees to accede to such temperature checks. Regardless of the constitutionality of such medical exams, the harm to the employee is minimal, obtaining such information benefits the employee, the employer and anyone they would otherwise come into contact with, and there are no straightforward methods of remedying such violations.

And, of course, even under the Fourth Amendment’s traditional analysis for the constitutionality of a search, where other facts demonstrate probable cause that the individual is infected with COVID-19 (e.g., severe coughing, profuse sweating, or other signs of severe illness) a warrant is unlikely to be required, similar to the U.S. Supreme Court’s 2016 ruling that law enforcement officers may breathalyze drivers suspected of driving drunk without a warrant after an arrest.

Law Enforcement and Administrative Searches of Businesses

As a general matter, a search of a business in the context of a law enforcement investigation to verify, for example, that the ongoing activity qualifies under an exemption to a closure order, must be supported by a warrant, which in turn must be justified by probable cause. But, again, there are many potential exceptions in these circumstances, such as the administrative searches exception that generally applies to heavily regulated industries and might apply more broadly under an emergency order to close businesses because of the COVID-19 crisis.

A Practical Approach to Enforcement and Compliance Issues

Most employers will want to adopt a practical approach to these enforcement and compliance issues. Action items that support such an approach include:

  • Performing due diligence to understand whether their operations and employees reasonably fit within the exceptions of restrictive emergency orders.
  • Providing employees with clear instructions to cooperate with law enforcement if stopped and questioned in furtherance of enforcement of those orders.
  • Providing employees with adequate identification and documentation reflecting the employees’ name, place of employment, and the basis for qualifying as an essential service or employee of an essential business under the emergency order — along with a contact person from the company who can verify these matters and take other appropriate action.

In discussions with state and local authorities, there are few if any indications that those authorities intend overzealous or officious enforcement. But it is in everyone’s interest to minimize conflict from law enforcement interactions under these orders, so the ounce of prevention represented by these practical points may be worth a pound of cure.

As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.

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