Avery v. State

The officers who arrested the defendant were in the lawful discharge of their duties because they had reasonable suspicion to warrant a second-tier encounter.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Huey Harrison Avery III challenges the order revoking a portion of his probation. He argues that the evidence was insufficient to show that he committed the new offense of obstructing an officer because he was entitled to walk away when a police officer tried to stop him. We affirm because the arresting officer had particularized, objective reasons for detaining Avery. The state filed a petition to modify or revoke Avery’s probation on the ground that he committed the new offenses of obstructing an officer and loitering or prowling. After conducting a hearing, the trial court found by a preponderance of the evidence that Avery had violated the terms of his probation by committing the offense of obstruction of an officer as set forth in the petition. The court therefore ordered Avery to be incarcerated in a probation detention center for not less than 180 nor more than 240 days. We granted Avery’s application for discretionary appeal, and he filed this appeal.

“This court will not interfere with a probation revocation, where the standard for finding a violation is a preponderance of the evidence, unless a trial court has manifestly abused its discretion.” Citations omitted. Cannon v. State , 260 Ga. App. 15, 16 579 SE2d 60 2003. OCGA § 16-10-24 a provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Avery argues that the officers who arrested him were not in the lawful discharge of their duties because they lacked reasonable suspicion to warrant a lawful, second-tier encounter. Therefore, Avery argues, their contact with him was simply a first-tier encounter from which Avery could walk away. See Walker v. State , 299 Ga. App. 788 683 SE2d 867 2009.

Avery v. State

The officers who arrested the defendant were in the lawful discharge of their duties because they had reasonable suspicion to warrant a second-tier encounter.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report