Avery v. State
313 Ga. App. 259
Ga. Ct. App.2011Background
- Avery challenges a probation-revocation order based on a new offense of obstructing an officer and purported loitering/prowling.
- The trial court found by a preponderance of the evidence that Avery violated probation by obstructing an officer.
- The arresting officer stopped Avery in the area of a recent robbery and based on be-on-the-lookout briefing, matching description, and location.
- Avery refused to speak and ran from the officer; he was subsequently detained and arrested.
- The issue is whether the encounter was a first-tier walk-away permissible contact or a second-tier stop requiring suspicion; the court held it was second-tier and supported by particularized facts.
- The appellate court affirmed probation revocation, concluding the state proved obstruction by preponderance of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Avery’s contact with police a second-tier encounter requiring suspicion? | Avery | State | Yes; contact was second-tier and supported by particularized basis. |
Key Cases Cited
- Galindo-Eriza v. State, 306 Ga. App. 19 (2010) (second-tier encounter requires particularized suspicion; walk-away rule for first-tier)
- Peters v. State, 242 Ga. App. 816 (2000) (brief investigatory stop requires articulable suspicion)
- Howard v. State, 187 Ga. App. 74 (1988) (onlookout description supported detention on reasonable suspicion)
- Walker v. State, 299 Ga. App. 788 (2009) (first-tier encounter permits walk-away; running permissible)