Zimmerman Did Not Have a Reasonable Suspicion to Believe Martin had Committed, was Committing, or was about to Commit a Crime

Today, I am going to revisit the reasonable-suspicion rule that the SCOTUS established in Terry v. Ohio, 392 U.S. 1 (1968). Even though George Zimmerman is a private individual and the rule only applies to contacts with people, such as Trayvon Martin, initiated by federal or state law enforcement officials for investigatory purposes, it is a fundamental rule that any student in a criminal justice program, such as George Zimmerman, can reasonably be expected to know.

First, the Rule:

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’ ”; it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”. Police may briefly detain a person if they have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity; such a detention is known as a Terry stop. If police additionally have reasonable suspicion that a person so detained may be armed, they may “frisk” the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard, in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

Terry, 392 U.S. at 21-22.

Second, why is this rule necessary?

Before the SCOTUS created this rule, police officials could initiate contact with a private individual, but could not lawfully detain that person for any length of time to investigate suspicious conduct, unless they had probable cause to arrest (i.e., reasonable grounds to believe the person had committed a crime). The SCOTUS created the reasonable-suspicion rule to apply to police initiated contacts with private individuals for investigation purposes to determine whether to arrest the person or let them go (i.e., whether, as a result of the contact, the officer developed probable cause to believe the person committed, was committing, or was about to commit a crime).

The absence of a rule to cover investigatory stops meant that the person stopped had the right to voluntarily terminate the contact at any time, or sue for false arrest, if the officer refused to allow the person to leave. Also, if the detention turned into an arrest without probable cause and a search incident to that arrest that led to the discovery of incriminating evidence concealed on the person or perhaps an admission by the person that he had committed a crime, the evidence seized and/or the admission would not be admissible in court because it had been obtained in violation of the person’s right to privacy, a violation of the Fourth Amendment. This potentially dire consequence, given a suitably egregious suspect like a serial killer, is the result of the exclusionary rule, another SCOTUS created rule to deal with persistent police misconduct that no amount of criticism or warnings by the court appeared to have any effect.

Third, how about an example to clarify the distinction between a reasonable suspicion and probable cause to arrest. Ask and you shall receive. Here are the facts in Terry.

On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets,[1] observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something”, whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

Fourth, why is Terry relevant to the Zimmerman case.

George Zimmerman, who should have been familiar with the Terry rule, characterized Trayvon Martin’s conduct as suspicious; yet, there is nothing suspicious about it, unless one assumes that seeking shelter from a downpour in the mail shed early Sunday evening while young and Black and looking around at home addresses while walking fast in the rain is reasonably suspicious activity.

Remember that the word “reasonable” means an objective test. That is, whether a reasonable person or police officer in the same situation would have concluded that the behavior was suspicious.

Serino realized that Zimmerman profiled Martin and he knew that racial profiling is never reasonable. He was right.

Conclusion:

Even though the reasonable-suspicion rule does not apply technically to Zimmerman since he was not a police officer, he must have known about the rule or reasonably could have been expected to know it, such that his decision to hunt down Martin and prevent him from getting away, just like all of the other Black “assholes” who got away, is utterly indefensible.

Moreover, even if he had not shot him to death, but had “only” assaulted him in an effort to detain him for the police, he still would be guilty of a battery. Depending on whether he injured Martin while committing that battery, he might have been committed a felony.

Finally, if anyone had a right to use force in self-defense, that person was Trayvon Martin.

91 Responses to Zimmerman Did Not Have a Reasonable Suspicion to Believe Martin had Committed, was Committing, or was about to Commit a Crime

  1. Patricia says:

    Professor,

    I have been wondering if the prosecution can, or would likely, ask Zimmerman, “what authority did you have to pursue Trayvon Martin on the night of February 26, 2012?”

    Zimmerman asserted to SPD that he was enroute to the store to shop for the week’s groceries. Having spotted Trayvon walking, all of Zimmerman’s movements thereupon were following and encountering Trayvon.

    None of those movements were in the direction of any store, particularly since they ended on foot.

    I’m not asking for Zimmerman’s “reason” (which was his suspicion).

    I’m asking his “authority.”

    And does this matter? Would it matter to a jury?

    • I do not believe that a lawyer should ask a non-leading question on cross. Don’t let him run wild and make shit up that you then have to disprove.

      I would make the point you’re attempting to make by putting him in a box from which he cannot escape by using the neighborhood watch liaison, his teachers at the school, including some of his relevant exam questions that he got right, and whomever is in charge of the HOA to establish his knowledge and the limits of his authority.

      Let’s say, for example, that he got an essay question right about the law of self-defense and SYG.

      Also, jury instructions can define applicable laws.

      • thejbmission says:

        OOOH Bravo Professor!
        I love this tactic of using GZ’s criminal law education as a way of ascertaining his legal knowledge, especially pertaining to SYG.
        Two of GZ’s most consistent statements to LE or anyone who’d listen is his wife’s experience of seeing a burglary suspect fleeing from one of the condos. He always starts off by mentioning this and the recent break-ins in his neighborhood too. It’s so rehearsed its sickening but I knew he did it for a reason. He’s trying to give a reason for his suspicion of TM.
        IIRC, The only training George has in the NWP was from watching a video. Wouldn’t it be interesting if we could get our hands on this video? I wonder if there are any locals out there who know how to get one??
        For me, it’s George’s knowledge of criminal law that makes this shooting so senseless and it’s this knowledge that made him so dangerous and depraved.
        Thank you professor, this article was extremely helpful and easy for people like me to understand.
        I think it got it.

      • Jun says:

        Too bad it doesnt matter, because George has no proof for his suspicion, as he is not an authorized officer of law enforcement, nor did he have any authority as a citizen to stalk and pursue Trayvon. There was no proof that Trayvon committed any crime and any of the witnesses will attest to that.

      • leander22 says:

        Professor, leading questions seem to be suggestive questions, non-leading questions ones open, not suggesting anything the other side could object to? Should I read the first paragraph as a chance in mind on how to put it, or a double negative, meaning: He shouldn’t ask leading questions? Or is there something that escapes me?

      • leander22 says:

        No need to respond, Professor, I just realized I shouldn’t have been wondering to start with. With a little help from Wikipedia. ;)

      • racerrodig says:

        In many cases the defendant is held to a “Higher Standard” because of his education, work history and such. I see this in civil cases I do expert reports for. Such as an auto mechanic claiming XYZ was not checked and caused repair ABC at $3,000.00 to be performed. If XYZ was checked the actual cost should be $500.00. The customer was “ripped off”

        Since he is a mechanic and “knows better” his argument fails as he must be held to a higher standard. I testified in a case where a guy hurt his race engine and blamed the guy who did the carburetor, me, for the damage. His theory was “the last guy to work on it” is liable despite the no warranty on race engines wording on everything. What I did had nothing to do with his damage, BUT, I found out he used to have his own repair shop. I dug up everything I could and my attorney went the “held to a higher standard” with the judge and jury. I’d have won even without it, but we use that regularly.

        Since Z has training by the police in his NW position, he spent 7+ years taking Criminal Justice, allegedly took CCW classes, etc. applied to be a police officer, does this apply??

  2. aussie says:

    Well, that would be an (inadmissible) leading question, unless GZ first admitted that he HAD been pursuing Trayvon.

    He wasn’t even following him, just happened to be going in the same direction at the same time, remember?

    Oh and he’d have to be on the stand in order to be asked. Which O’Mara will try as hard as he can, to avoid.

    But yeah, they could ask him how come the shopping trip suddenly became so unimportant.

  3. Two sides to a story says:

    Z supporters tend to get worked about about citizen’s arrests and whatnot, but I suspect the same rules Prof Leatherman outlines in this blog would apply to the situation. Nothing to profile. Should have stayed in his truck. Could have observed TM going home and walking through the front door. Z is shizazz outta luck.

    • ladystclaire says:

      George Zimmerman did exactly what he set out to do when he bought his gun and, that was to shoot and kill a black person. he didn’t buy that gun because of a pit bull either. I also don’t believe that there were any break ins in that neighborhood either. he took a life and I feel that he should pay by having the state of Florida take his. this is intentional premeditated murder and he is being under charged.

      • Malisha says:

        He is undercharged because Corey did not want to convene a grand jury and have the gigantic political circus attending that! Murder-2 is murder enough. Besides, if this were a death sentence case, you’d have a whole new problem in that maybe 60-70% of the pro-Trayvon folks are likely to also be anti-death-sentence folks! That would raise a separate political battle.

  4. Jun says:

    I agree Freddy and I have been saying it for the longest time that George had absolutely no authority to target, stalk, chase, pursue, stop, confront, terrorize, and shoot this kid. You just put it in legalese

  5. Rachael says:

    As far as I’m concerned, GZ is THE poster child for the very reason that NW programs AND police tell civilians to report and NOT to try to take matters into your own hands. Sometimes nothing will happen, sometimes you might put yourself in danger and get hurt, sometimes you might hurt someone else. No matter how “well-meaning” GZ may (or may not ;-)) have been, he got hurt and he killed another person.

    Now when I tried to explain this to the sewage at the outhouse, they all chimed in with “He wasn’t on watch that night, he was going to the store.” Well duh, but that has NOTHING to do with it. As a “good citizen,” he had done what he was supposed to do by reporting something he thought looked suspicious. THERE is where it should have ended. He had NO reason to get out of his car. If he did not know the address, he should have just said he did not know and gave the name of the complex.

    And he was NOT “just” a civilian. By being the “captain” of the NW program, he should have known those rules better than just your person-on-the-street civilian. Also, from all of his criminal justice and law enforcement classes and “supposed” knowledge of police protocol, he should have known better than anyone else that a civilian should not do more than report. Of ALL people, he should have known better.

    The sewage spews that it was not illegal for him to get out of his car. True, it was not. But it is THE reason civilians are told NOT to. IF, and I do mean IF, he had to do what he did out of self-defense, it was only because he put himself in a position to need to. He had NO need to do anything more than call and let the police handle it, but those assholes, you know, they always get away.

    Those who are proponents of concealed weapons and self-defense are barking up the wrong tree using GZ as an example of why we need laws to defend ourselves and carry concealed, because he is really an example of why stupid people should not be allowed to carry a concealed weapon. He is THE wrong person to get behind.

    • Jun says:

      Not only that, before George even confronted Trayvon, he was defecating on Trayvon’s right to security and personal space and privacy, as well as freedom.

    • In addition, regardless of what GZ was on his way to do when he spotted Trayvon, he put on the hat of neighborhood watch when he placed the call to the NEN and left his vehicle. It really does not matter if he were in his way to the store or to walk a dog; he stepped into the shoes of NW captain just before things went horribly bad. Arguing that GZ was on his way to the store and not on duty is moot.

      I could be involved in a personal task in the community and witness a student of mine being abused by an adult. The moment I intervene (and by law I am required to), my personal activity takes a back seat to my position as an educator.

      • Rachael says:

        There is no hat of a neighborhood watch. There are no shoes of a NW captain to step into. His duty and “authority” was no different than that of anyone – to call if he sees something suspicious. Whether it was suspicious or not is not up to him to decide unless he actually saw something happening. “Looking suspicious” is not a crime. He had every right to call the police if he thought something looked suspicious, just the same as any good citizen should do. Any duty or authority beyond that just does not exist in the absence of seeing an actual crime. And even then. . .

    • thejbmission says:

      Rachael,
      I think its safe to say that GZ was always on patrol.
      Listen to the 1st interview with Singleton February 26 Immediately after shooting.

      http://trayvon.axiomamnesia.com/?s=Zimmerman%2C+Singleton%2C+Feb+26

      He’s very active in his NWP. For someone to say he wasn’t on patrol that night is ludicrous. Do you think GZ would have passed up any black kid on this night because he wasn’t on patrol?? I think not. Tell the tree dwellers to get their heads out of the woodpecker hole. They’re in denial.

      • Malisha says:

        Right. AND he says he knows all the kids in his neighborhood AND all the adults in his neighborhood. They do not all agree with that statement, of course…

    • Malisha says:

      Actually, if there had been a good NW person around that night, that NW person would have phoned the police to say, “George Zimmerman is running around in the dark with a gun; please send a squad car immediately with sirens on and lights flashing because this guy is known to be aggressive and out of control.”

  6. Tee says:

    This will be the nail in his coffin, him profiling, and stalking trayvon. Zimmerman committed murder durning the commission of a crime
    ( profiling and stalking) in Florida the judge has no other recourse but to sentence him to life prision.

  7. grahase says:

    For those of you that feel George Zimmerman was heavily medicated at his court appearance, please look at the news footage of him walking to the courthouse (alone, I might add). He is walking with total confidence, wearing fancy sunglasses, behaving like a celebrity for the cameras. Just 5 minutes later, in the courtroom, he behaves like he is drugged. No, IMO, he is tired and bored and feels his presence is an inconvenience. Please give the footage alook and tell me what you think.

    • Grahase, Do you have a link to the footage?

    • Two sides to a story says:

      Gotta see this! Where’s the link?

    • Jun says:

      Its one of the reasons Corey and her team of investigators concluded it was murder 2 because of his disregard for human life, which is even showcased in his court proceedings. If he was not so depraved it would be manslaughter.

    • grahase says:

      Give me a second — I have to find it again. It is a local news station. Please stand by.

    • Brown says:

      very good observation, I saw that footage of him entering the building. Good Point.

    • leander22 says:

      grahase, I’d appreciate that link too, besides it sounds somehow more realistic to me. Obviously I only observed him closely as anybody else during the last motions hearing if he was on camera for a short while.

      I find it enormously sad, I can’t go back and check my impressions. One of them was seemingly a response to feeling watched by O’Mara’s female partner, he shortly turns his glance her way, noticing she did not watch him, turns back, his gaze freezes again

      Strictly I would appreciate a close up on his face with the whole proceedings only as soundtrack in the back. I would actually watch this for hours, pretty perverse isn’t it?

  8. Meanwhile, because I can:

    Gangnam Style

    The rage that’s sweeping the world

  9. grahase says:

    Here are 13 still photos of the Hearing on the 26th. Included is a still of GZ on his way to the courthouse. I will continue to look for the news footage.

    http://www.myfoxorlando.com/story/19864400/several-new-motions-on-tap-in-trayvon-martin-case

    • Xena says:

      I remember seeing him walk, unescorted, into the courthouse. He has a frown and his chin tucked down. That’s not confidence. It’s shame. He doesn’t want to be seen.

      • grahase says:

        That is why I am trying to find the actual footage. A still is merely a flash of time.

      • Two sides to a story says:

        To be fair, I don’t think anyone likes having to walk into court, even for a traffic violation.

        • Xena says:

          To be fair, I don’t think anyone likes having to walk into court, even for a traffic violation.

          I’ve seen many people walk into the courthouse like they were on a mission. I’ve seen others walk in with disgust, and I’ve seen others enter with respectful fear. GZ’s chin to his chest is shame. He was probably ashamed of having gained so much weight and having to wear a sports jacket rather than a suit.

      • Two sides to a story says:

        He waddled, poor man.

      • leander22 says:

        Xena, strictly I wouldn’t assume that people that gain weight are always ashamed of it. I like some “well shaped” people, and I do not have the impression it bothers them too much.

        But admittedly concerning the weight issue, I have to admit that I actually wondered if he had lost weight up to his arrest.

        I do not remember, but apart from his height do we have a report of his weight when he was arrested?

        • Brown says:

          Zimmerman’s height is shown as 5′8″ and his weight as 185 pounds on his Seminole County Sheriff’s Office Inmate Booking Information dated 4/11/2012, the date of his arrest.[47] Zimmerman’s height is shown as 5′7″ and his weight at 200 pounds on the Sanford Police Department Offense Report for 2/26/2012, the night of the shooting.[48]

          TCopied from wikipedia

        • Xena says:

          Xena, strictly I wouldn’t assume that people that gain weight are always ashamed of it.

          Regarding GZ, he’s superficial. My basis for that is because for his first bond hearing, he did not want to be seen on television in court in the jail jumpsuit. For his bond re-do hearing, he did not want to be seen on television in court wearing handcuffs. Both times, MOM motioned the court to allow GZ to appear in street clothes.

          Also, GZ shaved off his goatee and mustache. He transformed his physical appearance deliberately to impress others.

          IOWs, I was not referencing anyone else in terms of being ashamed of weight-gain other than GZ. After going through his make-over to appear in court and maintaining that appearance for this Hannity interview, it must have bothered him greatly to not appear well-dressed and “buffed” in court in October. His body language walking into the courthouse demonstrated that.

          I do not remember, but apart from his height do we have a report of his weight when he was arrested?

          His height and weight are on several police reports and his medical report.

      • Malisha says:

        Body Guards aren’t with him? Shellie isn’t standing by her man? Taaffe ain’t there? Osterman is not with “the most hated man in America” when he needs a friend? George’s hundreds of African American friends who love him dearly aren’t there? How come not? And hey: has anybody EVER seen Dear Sister Gracie? Never there in court to show support to her lil bro?

        • Xena says:

          @Malisha. I think that Taaffe was there and sitting next to Junior until someone said something, then he moved. As a State witness, Taaffe is not suppose to communicate with GZ. Since Junior advocates for GZ, Taaffe and Junior being close does not look good.

  10. grahase says:

    It looks like it might have been live footage – I will keep looking. But, the stills are a pretty good representation. Bear with me, please.

  11. Malisha says:

    To me, George looks the same before, during and after the court hearing. Dull, angry, detached, resentful, unattentive, self-absorbed and stupid. Oh, and White-Hispanic. HA HA HA! :cool:

  12. grahase says:

    The last music video of the first lady of country – Ms. Tammy Wynette with the British group KLF – Justified and Ancient.

  13. Smells like fire, methinks.

  14. Muddy Waters and Mike Bloomfield

    Long Distance Call 1974

  15. Xena says:

    When the following was filmed, Patti LaBelle dedicated it to our troops. I would also like to dedicate it to Sybrina Fulton and Tracy Martin.

  16. Two sides to a story says:

  17. this song has always moved me so much. And once i began learning the circumstances in Trayvon’s murder this song came to my mind. even now, what? a half a century later it’s still relevant sadly. But Trayvon’s legacy is bring change, all over the world. We love you lil man XOXO

    [Embedded the link for you]

  18. Malisha says:

    “The only training George has in the NWP was from watching a video. Wouldn’t it be interesting if we could get our hands on this video? I wonder if there are any locals out there who know how to get one?”

    That woman named Wendy something was interviewed on tape by the FDLE and she identified the video and it is available to the prosecution. I also think it is available by FOIA. I just noticed a response from the SPD in my e-mail in-box so I’ll go read it and get back to everybody about when the documents should arrive.

    • thejbmission says:

      I just noticed a response from the SPD in my e-mail in-box so I’ll go read it and get back to everybody about when the documents should arrive.

      Thank you Malisha! Your efforts are much appreciated!

  19. Malisha says:

    The money order was not yet turned over to the SPD because the City Hall is closed on Fridays in Sanford. (?!) That’s interesting. Anyway, I have corresponded with them again to assure them that I am eagerly if not anxiously awaiting their prompt response to my request. (Today is a federal holiday for the post office so no mail today.)

    More later.

  20. Malisha says:

    And this one is for George:

  21. Malisha says:

    GEORGE: Who do you think you are? We’re livin’ in a small world!

  22. Malisha says:

    Even in Serino’s interview of George, Serino speaks of “a good shoot” versus “a bad shoot.” This is peculiar in that George is not a law enforcement officer; he is not entitled to ANY “shoot.” His suspicions can be right OR wrong; his ability to figure out who is suspicious and who is not can be accurate or frankly crazy; that is all irrelevant because he has no authority to exercise any discretion concerning his suspicions.

    Even if he were right at the outset of his NEN call, and Trayvon was actually an experienced burglar who had in fact been inflicting his larcenous depredations upon the neighborhood for years, George did not have any right to pursue him, confront him, restrain him, scare him or shoot him. The “shoot” was therefore a “bad shoot.”

    It was SPD’s prejudice, and SPD’s institutional racism, that even led to the inquiry of whether it might have possibly been a “good shoot.” SPD automatically regarded George as “the good guy” [taken directly from a Serino quote] and therefore automatically regarded Trayvon as “the bad guy” and that is why they tried their damnedest to let George have his “good shoot” and walk. Or, as they say, “skip.”

  23. Malisha says:

    George’s “unreasonable suspicion” about Trayvon is definable as “profiling.”

  24. Malisha says:

    Check out the LLMPapa video Part III thread; FOIA from Florida confirms NO SHOOTINGS IN TWIN LAKES BEFORE GEORGE KILLED TRAYVON MARTIN.

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