I cannot agree with the conclusions reached in the decision in this case. In order to find the defendant guilty a resort was had to evidence obtained through a disregard of the constitutional guaranties which ought to be preserved to the guilty as well as the innocent. The motion to suppress should have been sustained because Davies was not charged with a crime. The police officers did not suspect him of a crime, they had no reasonable grounds to suspect him of any crime, and they had no right on the premises after they were told to leave. The law gave Davies a right to have a gun in his home. Even if the officers had been in uniform he would have had the right to resist their entering his home just the same as he would have had a right to resist any other traspasser, and to have gone to further lengths to prevent their entry where they had no warrant for his arrest. The fact that he called them vile names and refused to believe that they were officers had nothing to do with the case. These officers acquired no greater rights through persisting in their efforts to gain admittance to Davies' home, and what he did would not constitute either an assault or breach of the statute *Page 181 against the flourishing of a gun, regardless of his character, reputation and bad language.
The cases relied upon by the majority of this court are not authority for this case, because in them a crime either had been committed in the officers' presence or out of their presence but with reasonable ground on their part to believe that the defendant was guilty. In none of the cases was the crime, if any was committed, caused by the officers' attempt to make an unlawful entry of a habitation.
In People v. Kissane, 347 Ill. 385, the defendant was suspected of having committed a previous bank robbery, and the officer's ground of belief that the defendant had committed it was held reasonable. The same is true of People v. Swift,319 Ill. 359. In People v. McGurn, 341 Ill. 632, the defendant's conviction for carrying concealed weapons was reversed because the gun was discovered by means of an unlawful search. The defendant was not reasonably suspected of having committed a crime previous to the search. The fact that he was committing the crime of carrying a concealed weapon when he was searched was not sufficient to justify the unlawful search. InPeople v. Caruso, 339 Ill. 258, the officer saw the defendant picking pockets and arrested him. Thus the crime was not provoked by the officer but the case was one where a crime was committed in his presence and the arrest was justified. In Lynn v. People, 170 Ill. 527, also relied upon by the majority, the officer went to quell a disturbance and shot in self-defense the man causing the disorder. He was held justified. That was a case where the crime had been committed without the provocation of the officer.
It is therefore my opinion that the motion to suppress should have been allowed and the judgment reversed.
Mr. JUSTICE SHAW concurs in the above dissenting opinion. *Page 182