Gov. Bill Lee is giving travelers and motorists a defense if cops stop them as part of a CV-19 “health check” or “what are you doing on the road?” traffic arrest.
Officers across the state have been invited by the CV-19 panic to vigorously enforce Gov. Lee’s edicts for “social distance” and self-quarantine at home.
His executive orders Nos. 22, 23, and 27 appear to offer grounds for officers to arrest people exercising the right to travel. They appear to authorize a top-down control of the people without their having their traditional protections. Those would include the right to be free in their person, effects, property and movements unless they are committing a crime and are arrested under probable cause or, perhaps, “articulable suspicion of the commission of a crime.”
No papers required
Your defense from the lips of Gov. Lee has two parts:
➤ You don’t have to have any papers showing you are essential.
➤ You cannot be stopped apart from probable cause of “criminal conduct.”
These two points are at the end of a two-page letter to district attorneys, chiefs of police and sheriffs.
They are preceded by this commentary:
Therefore, in all cases, law enforcement should review the Orders carefully, educate and warn persons and businesses regarding the provisions of the Orders, and provide them with a reasonable opportunity to comply before considering stricter enforcement measures. Further, any enforcement measures should be limited to clear violations and used only as a last resort if the person or business refuses to voluntarily comply. We should not be using the force of law in difficult times to punish our neighbors over genuine disagreements in gray areas.
The two elements supportive of your personal liberty appear in what follows:
Importantly, these orders do not require a person to possess papers or documentary proof that they are engaging in essential activity or essential services, so requests should not be made for such documents. And these orders do not encourage or recommend that an officer stop a person (or vehicle) simply for being out of the person’s home, absent evidence of criminal conduct. [emphasis added]
What’s really exciting about this last comment is that Gov. Lee seems to be raising the standard for regular transportation arrests. Transportation stops in Title 55 are for transportation/shipping/hauling/moving/trucking infractions. Now, an infraction is not a crime. An infraction is a technical violation under a contract, and doesn’t imply moral evil or scienter (criminal intent).
Here, Gov. Lee seems to assert for your benefit a higher standard than “your tail light is out” or “your tag light is not lit” (light law violation), or “your tire touched the lane and you were weaving” or “you were driving recklessly on this empty road” or you “were speeding.”
He says there must be “evidence of criminal conduct.” Very little in Title 55, motor and other vehicles, or Title 65, chapter 15, motor carriers, are criminal in nature. The criminal statute is at Title 39, criminal offenses.
Traffic enforcement is not upon “criminal conduct,” but administrative violations under administrative law as part of state privilege enforcement.
With these words, Gov. Lee is saying that an infraction is not enough, that there must be “evidence of criminal conduct.”
The second defense mechanism handed you by Gov. Lee is the promise that you don’t have to have any “essential worker” documents on you when you travel in your car or operate a motor vehicle (these, legally, are distinct acts, one per right, the second per privilege).
The governor’s statement allows you to say to the officer intending to sniff your underwear: “Sir, I am under the protection of the governor’s executive order in that I don’t have to answer any questions about my business, that you cannot stop me to ask me why I am here, that you cannot stop me unless you have probable cause that I have committed a crime, or am about to commit a public offense, and I do not answer any questions apart from my lawyer present.”
And, if you have been following my work, you know you can say, instead, “Sir, I am traveling under transportation administrative notice, and I make no statement apart from my attorney’s being present.” And that is because you are traveling per right, apart from the claims and liabilities imposed by Title 55 upon the trucking fields.