dissenting.
With this opinion, the majority has given law enforcement officers total discretion to establish the guilt of anyone publicly voicing complaints about their actions. All an officer needs to do is testify that he “had to” stop whatever he was doing and turn his attention to the complainer, thus demonstrating the necessary element of obstructing or hindering a law enforcement officer in the *80lawful discharge of his official duties. In my view, this interpretation of the obstruction statute is overbroad and unconstitutional, and I respectfully dissent.
“Although we have held that words alone can constitute obstruction, we have found no case upholding an obstruction conviction based solely upon a defendant’s act of speaking to, remonstrating with, or even criticizing an officer during the performance of his duties.” (Citation omitted.) Harris v. State, 314 Ga. App. 816, 820-821 (1) (726 SE2d 455) (2012). The officer in this case chose to stop what he was doing to confront Johnson and tell him to be quiet, and when he would not do so, the officer arrested him. But the officers on the scene created the very circumstances about which Johnson was complaining, and to prosecute him for refusing to be quiet about it is the very essence of a First Amendment violation.
“A search warrant commands the search and gives the executing officer the authority to conduct such. OCGA § 17-5-23. The warrant delineates the scope of the search and directs the execution within such boundaries. OCGA § 17-5-24.” State v. Rocco, 255 Ga. App. 565 (566 SE2d 365) (2002). Absent appropriate exigent circumstances, evidence seized from premises without a proper warrant may be inadmissible at trial. Teal v. State, 282 Ga. 319, 326 (2) (647 SE2d 15) (2007).
So whether the police are executing a search pursuant to a valid warrant or not is important information, because absent exigent circumstances, officers searching a house without a valid warrant are trespassers conducting an illegal search. Teal, 282 Ga. at 326 (2); Shafer v. State, 193 Ga. 748, 755 (2) (20 SE2d 34) (1942). “An officer undertaking to execute a search warrant should have the warrant in his possession or so immediately at hand that it may be exhibited as authority for making the search,” and a warrant is not in the officer’s possession when it is “some distance from the scene of the arrest.” Shafer, 193 Ga. at 755 (2); see also Rocco, 255 Ga. App. at 565.
The officers executing the search about which Johnson was loudly protesting did not have a warrant in their possession when they kicked in the door, and Johnson’s outrage was understandable. The evidence is undisputed that the officers picked up Johnson’s son during a traffic stop, went to the son’s house, broke into the house without a warrant in hand, and began searching the premises. When the son’s mother returned home and asked to see their warrant, they told her they would show it to her when they were done and then ignored her and continued their search for an hour before one of them finally left the scene and returned with a warrant. A cousin stood outside with the mother, loudly objecting to the apparently warrant-less forced entry and search, when Johnson arrived on the scene. As *81far as he or any other civilian there knew, the officers had arrested Johnson’s son and broken into the house illegally.
Decided November 21, 2014. Karen S. Wilkes, for appellant. JackBrowning, Jr., District Attorney, Melisa A. Mason, Assistant District Attorney, for appellee.The arresting officer testified that he did not shoot his final picture of the house and go inside to continue taking photographs because Johnson was standing there “hollering and cussing” and the officer did not know “what [Johnson] was going to do.” But the officer conceded that Johnson did not physically try to stop him from taking photographs or block his view, and that he could have taken his last picture and walked into the front door to finish documenting the scene. Moreover, while the officer said that Johnson’s “hollering and screaming got everybody else yelling and screaming,” the only other people mentioned besides his son’s mother and cousin were a couple of people in another duplex who were getting “a little anxious and wanted to get a little mouthy as well” but had not come to the scene. Mere argument or expressions of frustration toward a police officer, without “something more,” is not enough to sustain a conviction for misdemeanor obstruction. Harris, 314 Ga. App. at 821. Here, absent “something more,” the evidence is insufficient as a matter of law to constitute obstruction.
The majority concedes that the only acts that could possibly constitute “something more” than just speech were Johnson’s failure to calm down when asked to do so and his refusal to leave the property. In other words, he did not shut up and leave. But it was the officer’s choice to stop what he was doing and remonstrate with Johnson. And when the officer ordered Johnson to be quiet and go away or he would be arrested, Johnson’s response was to turn around, put his hands together, and tell the officer to go ahead and jail him but that would not change the illegality of the search. That is hardly an act of obstruction. It is an act of protest.
For these reasons, I respectfully dissent to the majority opinion.
I am authorized to state that Judge Miller joins in this dissent.