An awful lot of people in the media and on various blogs are demanding the police arrest Zimmerman. This is just another indicator that 99% of the folks in this country really don’t know how our criminal justice system works. It is exceptionally stunning to me that a lot of lawyers are in the group crying for the police to arrest Zimmerman and hold him for trial. They, of all people, should know better.

Arrest is the taking of a person into lawful custody. The operative word in that sentence is LAWFUL. The police at this point CANNOT arrest Zimmerman without an arrest warrant having been issued. He is protected by the Fourth Amendment, which prohibits the government from making an unreasonable seizure of a person (an arrest) without a warrant, issued under probable cause. The ability for cops to arrest based on probable cause is an EXCEPTION to the warrant rule, held by the courts to be a ‘reasonable’ seizure without a warrant if founded in exigent circumstances.

The Fifth Amendment also comes into play, wherein nobody may not be held to answer for a “capital or otherwise infamous crime” except upon indictment by a Grand Jury (when a DA charges a crime, the indictment is at some point rubber-stamped by a Grand Jury), nor shall any person be deprived of their liberty without due process of law.

What this means in practical terms is that officers can arrest without a warrant for probable cause WHEN THE ARREST IS MADE AS A MATTER OF EXIGENT CIRCUMSTANCE. Put in plain language, that means it has to pretty much be done contemporaneously with the initial investigation of the crime….. and additional criteria must be met for the arrest to be legal. There has to be probable cause to believe a crime has been committed (i.e. that ALL of the specific elements outlined in the code which defines the crime have been met and that the person being arrested is the person who met them).

Where there is doubt in the minds of the police as to whether or not a crime was committed, the proper way to proceed is to investigate and submit the product of the investigation to the DA….. NOT to arrest.

Also considered in this determination is the ability of the police to adequately determine identity of the suspect, likelihood of flight, likelihood of danger to the community, and likelihood of loss of evidence (e.g. in a DUI, evidence is automatically lost merely by the passage of time, so DUI arrests are almost always contemporaneous with the perceived commission of the crime).

If any of the criteria are lacking, the police MUST submit their product of their investigation to the DA and/or the Grand Jury in lieu of arresting. Once the DA (or in the case of a violation of federal law, the US Attorney) has had a chance to review the case, the police, generally speaking, no longer have an option to arrest on probable cause. There can be exceptions, but they are few and far between, rely once again on an exigent circumstance, and have no application in this case. A warrant has to be issued as a Grand Jury Indictment OR by competent judicial authority. This is what is meant in the Sixth Amendment by “due process of law.”

The NORMAL process is for the DA, or special prosecutor to compile a list of the charges, a breakdown of the evidence gathered to that point, an explanation of the legality of the initial police contact with the suspect, and an explanation of how the evidence demonstrates a meeting of the requirements of the various elements of the specific statutes for which a violation is alleged (the probable cause part). A judge reviews that information and makes a determination on whether or not the DA has met all the requirements of the law, and if so, issues an arrest warrant. The police can THEN go legally pick Zimmerman up. If they do so otherwise at this point, it is by definition a false arrest, and the City of Sanford would be subject to rather severe civil penalties for having allowed it.

Individual state laws define who has authority to arrest, and under what circumstances, but that authority is always limited by the Constitution. Every state has some form of citizen’s arrest law on the books, but since the citizens are by definition NOT part of the criminal justice system (except as to their responsibilities as triers of fact in a jury trial), a citizen’s arrest is in reality not so much an arrest as a detention for purposes of handing a suspect over to the police. What the police do once the suspect is handed over, varies somewhat from state to state, but in most cases they have the authority to either accept the subject and continue the arrest process, cite them to appear in court later, or release the subject on the spot based on the police determination of whether or not there is, in fact, a crime AND sufficient evidence to justify an arrest.

The bottom line in this case……. The police in Florida do not have the authority to arrest Zimmerman at this point until an arrest warrant is issued by a competent judicial authority or the Grand Jury.

And believe me….. we do not want to live in a country where police can arrest someone just because the citizens are crying out for it to happen, or, for that matter, because someone on the police department WANTS to.

Why, then you ask, doesn’t the DA in Sanford seek an arrest warrant at this point? There could be any number of reasons. The first that comes to mind is, HE MAY WELL NOT HAVE EVIDENCE THAT A CRIME WAS EVEN COMMITTED. 1.) If the evidence gathered thus far (that is the evidence… not the conjecture of the media or of bloggers) indicates Zimmerman was defending himself in a legal manner, no judge will issue the warrant. 2.) If the police
botched the evidence collection in such a way as to make it inadmissible…. inadmissible evidence is the same as not having any as far as the courts are concerned. 3.) The evidence he has thus far may be insufficient to meet the ‘probable cause’ criteria.

The DA may also not yet have sought a warrant because:
He may have cause to believe the initial contact by the police was illegal. This is unlikely, but does occur on occasion. I once had a case thrown out because I responded to a large fight with lights and siren blaring, and failed to shut them off before entering the actual parking lot where the fight was happening. The judge determined that my lights and siren constituted a ‘detention’ of the suspects before I had personally observed a violation of law (I couldn’t actually see them fighting because of the crowd of people around them until I broke through the crowd), so the detention was illegal and the case was thrown out. That judge’s ruling would have likely been overturned on appeal, but the case was not big enough to justify the expense of going through that process. If there is doubt, he’s not going to want the case thrown out early in the prosecution for that reason. In such an instance, he would probably wait for a Grand Jury indictment before proceeding.

There may be further indication that additional evidence is likely (e.g. additional witnesses have or are expected to give statements, and the veracity of their statements must be checked out, or lab results that take time to process have not yet posted) a warrant should not be sought until at least the vast majority of relevant evidence is secured, and that evidence meets criteria for successful prosecution.

The DA, before he seeks a warrant, has to keep in mind that if an arrest warrant issues, in most places he has about 48 hours to get the defendant in front of a judge for indictment (the judicial process in which charges are leveled), and that the subject has a right to a speedy trial. That means in most jurisdictions in this country the defendant can demand his trial within, say, ten days. That means a preliminary hearing to determine whether or not there is sufficient cause to even hold a trial will be held within that period. If the DA cannot present sufficient cause to bind Zimmerman over for trial (e.g. the defense argues a CREDIBLE self-defense theory in combination with evidence for the prosecution that is not fully developed), the case will be dismissed. And even if bound over for trial, if there is not sufficient evidence to convince the jury, the case can be lost…. and the double jeopardy clause in the Fifth Amendment can prevent any further prosecution for the particular alleged crime.

What THIS means in practical terms, is that in a case like this, the DA is NOT going to seek an arrest warrant until he is prepared to carry through on a full prosecution, with a good likelihood of conviction, and he would be wasting the taxpayers’ money if he did.