GA Code § 16-11-36 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 11 - Offenses Against Public Order and Safety|Article 2 - Offenses Against Public Order|§ 16-11-36. Loitering or Prowling

  A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.   Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.   A person committing the offense of loitering or prowling shall be guilty of a misdemeanor.   This Code section shall not be deemed or construed to affect or limit the powers of counties or municipal corporations to adopt ordinances or resolutions prohibiting loitering or prowling within their respective limits.    (Code 1933, § 26-2616, enacted by Ga. L. 1980, p. 388, § 1.)   Cross references.   - Loitering on school property, § 20-2-1180.    Restriction on registered offenders residing, working, or loitering within certain distance of child care facilities, churches, schools, or areas where minors congregate; penalty for violations; civil causes of action, § 42-1-15.   Law reviews.   - For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001).   JUDICIAL DECISIONS   Section not void for vagueness.    - Prohibition of loitering and prowling in the total context of O.C.G.A. § 16-11-36 is not void for vagueness insofar as the statute is limited to activity which amounts to a threat to the safety of persons or property. Bell v. State, 252 Ga. 267, 313 S.E.2d 678 (1984); State v. Burch, 264 Ga. 231, 443 S.E.2d 483 (1994).   Venue.    - Juvenile's adjudications on the charges of loitering and obstruction of an officer arising out of the July 18 incident were reversed for failure to prove venue because, although the officer testified that the officer observed two individuals loitering outside the apartment complex, the officer never testified that the complex was in Spalding County or that the officer's pursuit of the juvenile occurred there; the state presented no other evidence of venue, and nothing in the record indicated that the trial court took judicial notice of the location of the apartment complex; and defense counsel's statements were not intended to be a stipulation of venue or that the juvenile authorized a stipulation as to venue. In the Interest of A. A., 334 Ga. App. 37, 778 S.E.2d 28 (2015).   No probable cause for arrest.    - In the plaintiff's action for false arrest, malicious prosecution, and excessive force, the plaintiff's explanation to the officer that the plaintiff was in the parking lot only looking to switch out the plaintiff and plaintiff's spouse's vehicles precluded finding that the officer had probable cause to arrest the plaintiff for loitering under O.G.C.A. § 16-11-36(a); therefore, the officer's actions in arresting the plaintiff constituted a violation of clearly established Fourth Amendment rights. Perkins v. Thrasher, 701 Fed. Appx. 887 (11th Cir. 2017)(Unpublished).   Evidence of flight.    - Flight is circumstantial evidence of consciousness of guilt, and the weight to be given to such evidence is for the jury to decide. St. Louis v. State, 328 Ga. App. 837, 763 S.E.2d 126 (2014).   Offering opportunity to explain not violation of self-incrimination privilege.    - Offering an opportunity under O.C.G.A. § 16-11-36 for someone suspected of loitering and prowling to explain their presence and conduct does not abrogate the right against self-incrimination. Bell v. State, 252 Ga. 267, 313 S.E.2d 678 (1984).   Opportunity to explain under subsection (b).    - Given the defendant's flight, combined with the defendant's peculiar behavior and appearance, the investigating officer might well have considered the circumstances impracticable for seeking an explanation from the defendant concerning the defendant's presence and conduct as required under O.C.G.A. § 16-11-36(b). O'Hara v. State, 241 Ga. App. 855, 528 S.E.2d 296 (2000).    Defendant's conviction for loitering was not invalid on the ground that the arresting officer failed to give defendant an opportunity to dispel any alarm or immediate concern for the safety of the persons or property in the vicinity where defendant was crouching in the bushes because, given defendant's flight and furtive behavior in a known drug area, the arresting officer might have considered the circumstances impracticable under O.C.G.A. § 16-11-36(b) for seeking an explanation from defendant concerning defendant's presence and conduct. Dukes v. State, 275 Ga. App. 442, 622 S.E.2d 587 (2005).    Probable cause found for arrest for loitering or prowling. Hansen v. State, 168 Ga. App. 304, 308 S.E.2d 643 (1983).    After stopping a car which was driving slowly in a shopping center parking lot because the car had a defective headlight, officers found a screwdriver in a pat down of one of the defendants, and the defendants made misleading claims as to how long the defendants had been in the parking lot, the officers had probable cause to arrest the defendants for loitering, prowling, and for possession of tools for commission of a crime. Evans v. State, 216 Ga. App. 21, 453 S.E.2d 100 (1995).    Given the evidence that the defendant was unable to offer a credible explanation for being on the grounds of a housing project, and failed to provide a law enforcement officer with a clear answer when asked about the ownership of a car the defendant had been leaning on, the officer had probable cause to make a warrantless arrest of the defendant for loitering. Boyd v. State, 290 Ga. App. 34, 658 S.E.2d 782 (2008).   Fingerprint card improperly admitted.    - Trial court erred in admitting into evidence over objection a fingerprint card taken following a felony arrest of defendant for violation of, inter alia, O.C.G.A. § 16-11-36, since the violation of that statute was another crime not shown to be connected with the one on trial, served no useful or relevant purpose, placed the defendant's character in evidence, and was prejudicial to the defendant. Strawder v. State, 207 Ga. App. 365, 427 S.E.2d 792 (1993).   Attempt to enter an automobile did not merge with loitering.    - Merging of sentences for attempt to enter an automobile in violation of O.C.G.A. §§ 16-4-1 and16-8-18, and loitering under O.C.G.A. § 16-11-36 was not warranted because loitering required proof of presence in a place at a time or in a manner not usual for law-abiding individuals, and attempt to enter an automobile required performance of an act which constituted a substantial step toward the commission of entering an automobile, both elements not required by the other crime. Brown v. State, 312 Ga. App. 489, 718 S.E.2d 847 (2011).   Evidence of intent to loiter.    - Trial court erred in convicting the defendants of burglary in violation of O.C.G.A. § 16-7-1(a) for entering property with intent to take electrical wiring and copper piping because the trial court should have charged the jury on the lesser included offense of criminal trespass, O.C.G.A. § 16-7-21(b)(1), when the jury could have concluded that the defendants were guilty of criminal trespass since the jury could have found that the defendants entered a house with the intent to loiter there in violation of O.C.G.A. § 16-11-36(a); the defendants were on the property without permission, one of the defendants stated that the defendants were not there to steal anything but rather to "look around," and the defendants thought the house was about to be bulldozed, police officers did not find any tools in the building or in the immediate possession of either of the defendants, and the defendants were not found in immediate possession of any purported stolen items. Waldrop v. State, 300 Ga. App. 281, 684 S.E.2d 417 (2009).   Subsequent search of automobile after arrest for loitering.    - Trial court did not abuse the court's discretion in denying the motion to suppress because following the defendant's arrest for loitering, according to the officer's testimony, there was no one to release the car to so it was necessary to impound the car and conduct an inventory search in order to protect the police department from any liability. Bowler v. State, 355 Ga. App. 77, 842 S.E.2d 546 (2020).    Evidence supports conviction for loitering or prowling. McFarren v. State, 210 Ga. App. 889, 437 S.E.2d 869 (1993); Blair v. State, 216 Ga. App. 545, 455 S.E.2d 97 (1995); Griffin v. State, 223 Ga. App. 796, 479 S.E.2d 21 (1996).    Evidence was sufficient to support the conviction as any rational trier of fact could have found beyond a reasonable doubt that defendant and the companion were in a place at a time and in a manner not usual for law-abiding individuals, that the circumstances warranted a justifiable and reasonable alarm or immediate concern for the safety of property and persons in the area, and that defendant's explanation, that they were in the business park after hours because they were looking for the home of a woman they met on the Internet and had become lost, simply did not dispel the deputy's alarm or concern. Franklin v. State, 258 Ga. App. 281, 574 S.E.2d 361 (2002).    Officer's testimony that the officer encountered a group of juveniles, including the appellant, at 1:30 A.M., that the juveniles could not explain their presence in the area, that the juveniles did not have identification, and that the juveniles gave conflicting stories about the owner of a vehicle the juveniles were standing around was sufficient to prove the offenses of curfew violation, loitering, and prowling beyond a reasonable doubt; it was immaterial that the appellant did not attempt to flee from the officer, did not refuse to identify oneself, or did not attempt to conceal oneself. In the Interest of R.F., 279 Ga. App. 708, 632 S.E.2d 452 (2006).    Conviction for loitering under O.C.G.A. § 16-11-36 was upheld based on the defendant, a male, being present in a sorority house parking lot at 2:00 A.M. repeatedly pulling on a vehicle's door handle. Brown v. State, 312 Ga. App. 489, 718 S.E.2d 847 (2011).    Trial court did not err by denying the defendant's motion for a new trial because a rational jury was entitled to find the defendant guilty of loitering or prowling based on the evidence and all inferences drawn from the evidence that the defendant was found outside the victim's apartment door at 6:45 A.M., in the dark, with items in the defendant's pocket that could be used for a burglary and fled when confronted; the fact that the defendant identified oneself to the police officer did not mean the evidence was insufficient. St. Louis v. State, 328 Ga. App. 837, 763 S.E.2d 126 (2014).    Evidence that the defendant appeared to be peering into cars in an area the officer knew had been experiencing break-ins, giving the officer concern for the safety of property in the parking lot, and that the defendant fled when an officer smelled marijuana, saw a bulge in a pocket, and wanted to pat the defendant down was sufficient to permit a reasonable trier of fact to find the defendant guilty of loitering. Newman v. State, 336 Ga. App. 760, 786 S.E.2d 688 (2016).   Evidence supports conviction.    - Given the evidence that the defendant was standing outside a residential building before dawn, wearing a bulletproof vest and armed with a handgun, a large knife, and two long swords, one of which was drawn, the jury was authorized to find that the defendant's manner and the circumstances justified an objectively reasonable immediate concern for the safety of persons or property in the vicinity for purposes of the loitering statute, O.C.G.A. § 16-11-36. El-Fatin v. State, 332 Ga. App. 252, 771 S.E.2d 902 (2015).   Evidence supports revocation of probation.    - Trial court was authorized to find, under the preponderance of the evidence standard, that defendant's presence on private property caused a justifiable and reasonable alarm for the safety of the property, and the revocation of the defendant's probation was proper for the offense of criminal trespass and loitering or prowling since the record showed that the defendant climbed through a hole in a fence around private property at a time when the business was closed and the gate shut, a manager called police, and then, when the defendant was told that police had been summoned, defendant left the scene; there was no evidence that defendant's economic status or homelessness factored into the trial court's decision to revoke defendant's probation. Milanovich v. State, 278 Ga. App. 669, 629 S.E.2d 556 (2006).    Cited in Bullock v. City of Dallas, 248 Ga. 164, 281 S.E.2d 613 (1981); Shoemaker v. State, 165 Ga. App. 124, 299 S.E.2d 414 (1983); Price v. State, 175 Ga. App. 780, 334 S.E.2d 711 (1985); Brown v. State, 181 Ga. App. 865, 354 S.E.2d 169 (1987); Castellon v. State, 200 Ga. App. 478, 408 S.E.2d 493 (1991); In the Interest of T. H., 258 Ga. App. 416, 574 S.E.2d 461 (2002); Hall v. State, 322 Ga. App. 313, 744 S.E.2d 833 (2013); State v. Freeman, 349 Ga. App. 94, 825 S.E.2d 538 (2019).   RESEARCH REFERENCES   ALR.   - Former jeopardy as ground for prohibition, 94 A.L.R.2d 1048.   Validity, construction, and application of loitering statutes and ordinances, 72 A.L.R.5th 1.