Police suspects risk harmful misinterpretations of their non-verbal actions
George Lee Hawkins was stopped for a moving violation. Once stopped, the police saw a bulge in his shirt, and asked him if he could raise his “‘shirt up a little bit so [the police officer could] see how it sits.’” Hawkins then “extended his arms completely out to his sides and raised them about halfway up to his shoulders with his palms facing the officers.” Next, one of the several police officers present ” lifted the tail of Hawkins’s shirt and revealed the handle of a handgun tucked into his waistband.” Hawkins v. Virginia, ___ Va. App. ___ (Aug. 4, 2015).
And the rest is history. Hawkins got convicted of being a convicted felon in possession of a handgun, for which the penalties are severe.
On appeal to the Virginia Court of Appeal, the two-judge majority affirmed Hawkins’s conviction, finding that his non-verbal action with his arms and hands in response to the request to raise his shirt up, constituted consent for the police to lift up the shirt. The remaining judge went even further by concluding that the police did not need any consent to lift up Hawkins’s shirt, saying that lifting up his shirt was justified under Terry v. Ohio, 392 U.S. 1 (1968), which is a blight on the Fourth Amendment’s limitations on police searches and seizures.
At some point, non-verbal actions are too ambiguous to decipher. For instance, in some cultures, a head nod means no, whereas a head not is taken a yes in the United States.
With police, the more data a criminal suspect gives them, the more the police can misinterpret and even twist that data. If Hawkins made the arm and hand movements that the police claimed, that was such data. When police ask a suspect to say or do anything, beware the consequences of responding verbally or non-verbally, other than to say that the suspect refuses to answer questions and refuses all searches.