¶ 47. (concurring). The majority exhibits an unbridled exercise of power. What I mean by that phrase is that the majority ignores the normal restraints of an appellate court such as following precedent and letting the parties frame and argue the issues. Instead, it unnecessarily reaches out to overrule a prior decision that even the State acknowledges "was never raised" previously and "is not part of this case." Why does the majority do this? Because it can.
¶ 48. I write separately because I cannot join the majority in overruling State v. Mikkelson, 2002 WI App *617152, 256 Wis. 2d 132, 647 N.W.2d 421. As enunciated in the concurrence of Justice Crooks, not only is it unwarranted but the test the majority adopts in its stead is unworkable. Although I agree with the result of the majority, that the court of appeals should be reversed and the conviction affirmed, I do so based on a different rationale. Accordingly, I respectfully concur.1
I
¶ 49. In Mikkelson, the court of appeals determined that hot pursuit of a fleeing misdemeanant was not by itself sufficient to justify a warrantless home entry. Id., ¶ 17. The holding in Mikkelson is not at issue here given that hot pursuit is not an issue in this case.
¶ 50. Ferguson has never relied on Mikkelson and has never argued that the officers' home entry was unlawful because disorderly conduct is a misdemeanor. Instead, Ferguson has consistently asserted that the home entry was lawful only if she posed a threat to the safety of herself or her nephew, and it was necessary for the jury to decide whether that exigent circumstance was present.
¶ 51. Neither party cited Mikkelson at the circuit court or at the court of appeals. Further, both parties agree that it is not necessary for this court to address Mikkelson in order to resolve this appeal. Ferguson argues that Mikkelson is irrelevant because its holding is limited to hot pursuit, and this case involves a different exigency. At oral argument, the State agreed that Mikkelson need not be addressed: "If Ferguson's conviction is affirmed, as [defense] counsel points out, *618the MikkelsonlSanders2 issue was never raised and therefore it is not part of the case."
¶ 52. The State is correct. The majority's discussion of Mikkelson is a wholly unnecessary detour, and only after reaching out to overrule the case does the majority return to the real issue presented — whether the jury instruction that was actually given was erroneous.
¶ 53. What makes the majority's overreach even worse is that it does not deal with some trifling, penny-ante issue. Rather, it dilutes the protections guaranteed to all of us by the Fourth Amendment of the United States Constitution.
II
¶ 54. I agree wholeheartedly with Justice Crooks' prediction that the majority's new test for exigent circumstances — whether the offense is jailable — is unworkable. His concurrence expresses doubt "that a law enforcement officer will easily be able to determine, perhaps in the middle of the night, and certainly without the knowledge of what offense the prosecuting authority will ultimately decide to charge, whether the offense involved 'is a jailable or nonjailable offense.'" Justice Crooks' concurrence, ¶ 79.
¶ 55. This very case demonstrates the difficulties presented by the majority's approach. The majority concludes that "because the disorderly conduct with which Ferguson was charged was a jailable offense, the jury could have been permitted to decide whether exigent circumstances justified the police's warrantless entry into her home." Majority op., ¶ 30.
*619¶ 56. In this case, however, it is not at all clear that the officers were arresting Ferguson for a jailable offense. The majority miscites the record when it states that City of Wausau police officers entered Ferguson's apartment to arrest her "for misdemeanor disorderly conduct pursuant to Wis. Stat. § 947.01." See majority op., ¶ 4. In fact, Officer Taylor, who made the decision to arrest, testified that he decided to take Ferguson into custody in order to let her sober up and calm down:
I determined it wouldn't be a good idea to just leave the situation and go back to the ED. I determined that I was going to arrest her for disorderly conduct, at least so she can sober up for the night in the jail and not cause [her nephew] any harm after we leave.
It is unclear whether at the time of the arrest for disorderly conduct, Officer Taylor intended for Ferguson to be charged with a crime or any offense at all.
¶ 57. If charged, it just as easily could have been for a civil forfeiture rather than a misdemeanor, but for Ferguson's post-arrest conduct. The Wausau Ordinances provide that the penalty for disorderly conduct is "a forfeiture of not less than ten dollars nor more than two hundred dollars for each offense." Wausau Municipal Code §§ 1.01.110, 9.04.010. Under the Marathon County Ordinances, the penalty for first offense disorderly conduct is "not less than $5.00 nor more than $500.00." Marathon County Ordinances § 25.04; see also id. §§ 9.01, 9.15. Neither the city nor the county ordinance provides that disorderly conduct is a jailable offense.
¶ 58. I predict, along with Justice Crooks, that law enforcement will labor under the uncertainty of the majority's newly contrived test. As city police officers step over the threshold to arrest for disorderly conduct, *620how are they to know if conduct will subsequently be charged as a jailable or nonjailable offense?3 When officers have to act in the middle of the night under split-second circumstances, how can we expect them to make these nuanced decisions? I conclude that the test is unworkable.
Ill
¶ 59. After taking a detour to change Wisconsin law and decide issues that are wholly irrelevant to this case, the majority finally returns to the real question presented — whether the jury instruction properly described the law. See majority op., ¶¶ 31-45. It undertakes a contorted analysis, relying on language from New York v. Harris, 495 U.S. 14 (1990).
¶ 60. Yet, Harris is a very different case from the one presented here. In that case, pursuant to a "departmental policy" of arresting suspects at home but without a warrant, officers unlawfully entered Harris's home to arrest him for murder. Id. at 15-16; see also id. at 25 (Marshall, J., dissenting). They interviewed him inside the home, and Harris confessed. Id. at 16. The officers then transported him to the police station *621where he confessed again. Id. The question was whether the stationhouse confession should be suppressed because it was the product of an illegal arrest. The Supreme Court concluded that the stationhouse confession to murder was not itself the product of an illegal arrest and therefore need not be suppressed. Id. at 19. Here, however, Ferguson is not seeking to suppress any evidence.
¶ 61. The Harris opinion is not without controversy. It is viewed under certain fact situations as creating powerful incentives for officers to ignore Fourth Amendment protections. Not all courts have clamored to embrace its holding. For instance, when Harris was remanded by the Supreme Court to the New York Court of Appeals, the New York court refused to conclude that the stationhouse confession was admissible. See People v. Harris, 570 N.E. 2d 1051 (N.Y. 1991). Rather, the New York court determined that "the Supreme Court's rule does not adequately protect the search and seizure rights of citizens of New York," and that even if the confession was admissible under federal standards, the New York State Constitution required its suppression. Id. at 1052-53.
¶ 62. Ferguson claims that the error here is that the circuit court failed to give the correct jury instruction. One element of obstruction is that the police were acting with "lawful authority." Wis. Stat. § 946.41. Ferguson asserts that the court should have instructed the jury on the law of exigent circumstances so it could determine whether the State proved that element. She has consistently argued that if the entry and therefore arrest for disorderly conduct were unlawful, then she could not be prosecuted for obstruction.
¶ 63. I conclude, however, that even if the entry and arrest for disorderly conduct were unlawful, the *622obstructing was sufficiently separate in time and location from any potentially unlawful conduct by the police. See State v. Annina, 2006 WI App 202, ¶ 11, 296 Wis. 2d 599, 723 N.W.2d 708 (citing with approval United States v. Bailey, 691 F.2d 1009, 1017-18 (11th Cir. 1982)) ("[T]he police may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct and causally connected thereto.").
¶ 64. The obstruction for which Ferguson was charged was a distinct crime from the disorderly conduct charge, and was based on distinct conduct that occurred outside of her home. Admittedly during the course of the trial there was some reference to her resistance in the home.4 What is clear, however, is that the obstruction that occurred outside the home was paramount.
¶ 65. Officers Taylor and Cihlar, who made the initial and allegedly unlawful arrest, testified that they escorted Ferguson out of her apartment and into a waiting squad car. At that point, the officers testified that she actively and aggressively resisted their attempts to bring her into custody.
¶ 66. Officer Taylor testified that she physically resisted when they escorted her down the exterior staircase of the apartment building:
Q: Was she cooperative with you going down the stairs?
*623A: No. She would do shoulder shifts back and forth to try to either break free, then she was what we call dead weight tactics, where an individual goes limp and then you have to struggle more to hold them up and so forth. This creates a danger for the individual and us, especially when they are going down a flight of stairs.
There was a point halfway through the stairs where she picked her legs up, kind of up in front of her, and started almost a bicycle motion with her feet, flailing her feet around.
She was flailing around, using dead weight tactics, and part of the way, while she was kicking with her legs, I either got kicked with her foot or knee in the thigh. It was kind of like a charlie horse feeling as we continued down the stairs. Eventually we got her to the bottom of the stairs safely without anyone else getting injured.
¶ 67. He also testified that Ferguson obstructed the officers when they tried to place her in the squad car:
[W]e were kind of rushing her to the car because she was yelling and so forth. Her pants began to fall down, I suspect because of all the kicking she was doing. As we got to the rear of the squad, I still had her, ahold of her with one arm and began to try to pull up her trousers with my left hand, and she counteracted my efforts by kicking more to actually kick the pants off. She yelled, "Look at this. Wausau PD is stripping me down on the street," and said something like she is going to tell everything, we stripped her down. I just opened the door at that point and put her in the car.
Officer Cihlar testified that she had been kicking, twisting around, and yelling, and by the time they arrived at the squad car, her pants were at her ankles. *624He testified that they "tried numerous times to have her pants up and keep them up, but she seemed determined to resist that, and so we had her seated in the squad as she was."
¶ 68. Additionally, Officer Taylor testified that Ferguson continued to resist once she had been placed in the squad car. He testified that at one point, she freed herself from her handcuffs. Further:
[I was approximately 90 feet away from the squad car, and from that distance] I could hear thumping in the back of the squad, which is familiar to me as someone kicking the back of the cage, or the inner door area, as well as her yelling. That got my attention.
¶ 69. This conduct bears no relation to the purportedly unlawful entry for disorderly conduct. After the arrest, and after she was transported outside by the officers, Ferguson obstructed the officers by kicking, using dead weight tactics, and removing her clothing. This obstruction was a new and distinct crime. Under these facts, even if the initial arrest for disorderly conduct was unlawful, that cannot immunize Ferguson for prosecution for the second, separate crime.
¶ 70. The jury instruction for obstructing an officer given by the circuit court advised that officers act with "lawful authority" when they have probable cause to believe that a crime is, has been, or is about to be committed. Ferguson argues that the circuit court erred by failing to give a jury instruction defining "lawful authority" in the context of exigent circumstances which could make lawful the officers' warrantléss entry for disorderly conduct. I conclude that the circuit court gave the proper instruction.
¶ 71. Here, the crime of obstructing an officer is a new and distinct crime. Additionally, both the conduct *625underlying the obstruction charge and the location of where the obstructing conduct occurred support the conclusion that the obstruction is separate from the warrantless entry of the apartment for disorderly conduct. Accordingly, I respectfully concur.
¶ 72. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice N. PATRICK CROOKS join this concurrence.
1n addition, I join Part II of Justice Crooks' concurrence.
State v. Sanders, 2008 WI 85, 311 Wis. 2d 257, 752 N.W.2d 713.
The United States Supreme Court grappled with a similar concern in Welsh v. Wisconsin, 466 U.S. 740, 746 n.6 (1984):
The petitioner was charged with a criminal misdemeanor because this was his second ... citation [for what would otherwise be a civil forfeiture] in the previous five years. Although the petitioner was subject to a criminal charge, the police conducting the warrantless entry of his home did not know that the petitioner had ever been charged with, or much less convicted of, a prior violation for driving while intoxicated. It must be assumed, therefore, that at the time of the arrest the police were acting as if they were investigating and eventually arresting for a nonjailable traffic offense that constituted only a civil violation under the applicable state law.
Specifically, Officer Taylor testified, "[I] grabbed onto her arm. As she turned around, at this point I think it was her right arm, and she tried to shake it loose, but she couldn't." Additionally, the officers testified that she was slow and "picky" about which socks she wanted to wear. Unfortunately, neither the court nor the attorneys sought to clarify whether these minor references also served to support the factual basis of the obstruction charge. The real focus of the testimony establishing obstruction, however, was the testimony about the aggravated conduct that occurred while she was outside the apartment.