Sometimes you need to go outside your own jurisdiction to find the right language in support of an argument. For years I have been looking for language that captures the problems — the ambiguity and the over-inclusiveness – posed by use of the police officer’s favorite catch-all phrase, “furtive gestures.” Today I found what is probably the best language I have seen to date, this drawn from a California opinion, People v. Superior Court, 478 P.2d 499 (1970), and adopted by the D.C. Court of Appeals in In the Matter of T.M., 577 A.2d 1149 (D.C. 1990). Although perhaps a tad wordy, it gets the job done. I particularly like the part about the officer’s preconceived notions while initiating the encounter:
The difficulty is that from the viewpoint of the observer, an innocent gesture can often be mistaken for a guilty movement. He must not only perceive the gesture accurately, he must also interpret it in accordance with the actor’s true intent. But if words are not infrequently ambiguous, gestures are even more so. Many are wholly non-specific, and can be assigned a meaning only in their context. Yet the observer may view that context quite otherwise from the actor: not only is his vantage point different, he may even have approached the scene with a preconceived notion – consciously or subconsciously – of what gestures he expected to see and what he expected them to mean. The potential for misunderstanding in such a situation is obvious.