MenuThe Centers for Disease Control and Prevention (“CDC”) now “recommends” wearing cloth face mask coverings in public settings, at least when social-distancing measures are difficult to maintain. And each state has its own law and “suggestions.”
Saying “face coverings” is a nice way of avoiding the negative connotations of saying “mask.” Have you ever walked into a store filled with people (consistent with social distancing, of course) wearing masks and wondered if any were going to going to pull out a gun and rob the store? Do cops feel the same way? What is the reality of situation? Are you more likely to be considered a criminal if you wear a mask?
We’ve seen where police shot and killed a man near Lansing, Michigan, in a mask dispute. We’ve seen police wrestle to the ground a woman with her daughter in the New York subways who was not properly wearing her mask. And there are numerous other cases.
The Governor’s Executive Order Requires that You Wear a Face Mask
Governor Whitmer recently issued Executive Order 2020-147, which requires all Michigan residents to wear a face mask: “Any individual who leaves their home or place of residence must wear a face covering over their nose and mouth.” Governor Whitmer also required that folks in Michigan wear face masks (i) in all indoor-public spaces, and on (ii) all forms of public transportation. You also have to wear your face mask if you are a passenger on a ride-sharing vehicle; e.g. Uber or Lyft, or if you are a passenger in a private car being used as “hired transportation.”
This new Executive Order leads to a number of questions:
- How will the new mandatory-face-mask requirement impact the behavior of police officers?
- Will the new mandatory-face-mask requirement change when officers pull somebody over while driving?
- Will the new mandatory-face-mask requirement change law-enforcement practices in any way?
- Specifically, if you or the occupants in your car are not wearing a face mask while you are operating the car, does probable cause exist for a police officer to stop the car?
- Can I get a ticket for not wearing a mask?
All Bark and No Bite?
What happens if you don’t wear a face mask while driving? It is important to note that the Governor’s Executive Order does not make your failure to comply a crime. To the contrary, the order provides that if you fail to wear a required face mask, you are guilty of a misdemeanor, and a court may not impose jail time – even if you are guilty of a willful violation. We have yet to hear anything on (i) whether police in the State of Michigan will enforce this Executive Order, or (ii) if they intend to enforce it, how they will enforce it.
There is well-established United States Supreme Court precedent that governs when the police may stop your moving vehicle. The general rule is that that the police can stop you only if they have “probable cause” to believe that you or someone in your car has committed a crime.
There are many common circumstances when the police may lawfully stop you. For example, the police can stop you whenever you violate the traffic code; e.g., for speeding, failure to indicate a lane change, etc. In 2014, the United States Supreme Court indicated that the police may stop a vehicle based on an anonymous 911 call if the caller provides sufficient information and detail (i) to give the impression to a normal person that they are reliable, and (ii) to give rise to a reasonable suspicion that you or someone in your car committed a crim.
Police officers can also stop you while you are driving if they reasonably believe, and can describe in detail what caused their officer ears to perk up and alert them to criminal activity, that someone inside your car committed a specific crime or was about to commit a specific crime. Moreover, this reasonable suspicion can be based on an informant.
There are many other reasons a traffic stop may be legally permissible, but based on this information alone it would appear that the police can stop you while you are driving if they see that you’re not wearing a face mask.
All the above being said, this analysis presumes that the Governor’s Executive Order requires you to wear a face-mask every time you leave your home – including when you are inside your personal vehicle. Obviously, your car is not “public transportation” or public-indoor space, and unless your using your car as transportation for hire, you can argue that the Executive Order does not cover your private car when you are using it for private transportation.
Nevertheless, due only to how broad the Executive Order is, it is conceivable that a police officer could view the Executive Order differently and stop your car based solely on this fact. It is unclear how a judge would view the legality of such a stop, because we are unaware of any case where a traffic stop was based solely on this fact.
Another interesting question arises: if the police pull you over for DUI while you are wearing a mask, may the police ask you to remove the mask so that they may better listen to your speech and determine if you have an odor of alcohol on your breath? It would seem that the answer is “yes” though doing so may endanger both the officer as well as the driver by exposing each to an increased risk of contracting the Covid-19 virus. The wearing of masks also creates issues around when law enforcement can require someone to remove the face covering. Similar to the Fourth Amendment issues that control when a person may be required to remove a jacket or a hat, answers to these questions can vary greatly between jurisdictions.
Back to the Initial Questions
Based on what all we’ve read, we can answer the questions asked above with reasonable certainty:
- How will the new mandatory-face-mask requirement impact the behavior of police officers?
It depends on the officer. An individual officer may view you as being more or less suspicious if you’re wearing a mask.
- Will the new mandatory-face-mask requirement change when officers pull somebody over while driving?
It’s possible, but unlikely. Police officers will continue to pull over those cars or drivers that seem the most suspicious. If you are behaving the same as everyone else, you will not seem more or less suspicious. You will be the same!
- Will the new mandatory-face-mask requirement change law-enforcement practices in any way?
See above, but probably not. Police officers are trying to stop crime, arrest criminals, and make the streets safer for all. It’s unlikely that a mandatory-mask rule will change how they behave.
- Specifically, if you or the occupants in your car are not wearing a face mask while you are operating the car, does probable cause exist for a police officer to stop the car?
It is unlikely that wearing a mask, alone, could give rise to probable cause. Of course, as mentioned above, every cop is different, and it is impossible to predict how all will act.
- Can I get a ticket for not wearing a mask?
Remember that traffic laws are generally local laws. So, you can get ticket for not wearing a mask only of there is a law that authorizes police officers to give you a ticket. This depends on where you are.
If you are stopped for DUI in Michigan, with or without a Covid-19 face mask, call the Michigan DUI lawyers at George Law for a free no-obligation case review. (248) 470-4300. One of the many things we will do when speaking with you is determine if there may be a defense to your DUI based on an unlawful-police stop.