The revelation that police in Sanford applied to the local district attorney for a warrant to arrest the man who fatally shot Trayvon Martin, but were rebuffed because the murky circumstances surrounding the killing did not constitute “probable cause,” is bizarre on several fronts. First, police are empowered to make “probable cause” determinations and arrest suspects at crime scenes, and do so thousands of times every day, to develop and preserve the evidence necessary to prosecute the case. The Sanford police, however, made little effort to thoroughly and immediately comb the scene, question the suspect and any witnesses, and confiscate evidence. With the crime scene now ice cold and the suspect long unavailable for spontaneous responses to critical questions, the police will be hard pressed to develop the evidence that was readily obtainable a month ago.
The failure to take the suspect into custody for further questioning, i.e., to arrest the admitted killer standing over Martin’s body with a recently fired gun, was an egregious irregularity in police work that cannot be excused by hollow assertions of the absence of probable cause. The scene was dripping with probable cause, as it is traditionally defined in our criminal law. It requires, as any good cop or prosecutor or criminal defense attorney will tell you — and as the U.S. Supreme Court put it — only “reasonably trustworthy information” supporting a “prudent” belief that the suspect committed or is committing a crime. As the court informed us in Illinois v. Gates, the bar is set lower than a preponderance of the evidence; a “fair probability” or “substantial chance” will suffice. The police need not be able to prove anything. They need only conclude, using common sense based on experience, that a crime was probably committed, and that it was probably the suspect who committed it.
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