¶ 73. {concurring).
I
¶ 74. Since I am convinced that the majority opinion is correct that "if the failure to instruct the jury on exigent circumstances was error, it was harmless," majority op., ¶ 45, see also ¶ 1, I join that part of the opinion and respectfully concur.
¶ 75. The appropriate test for harmless error is set forth in State v. Harvey, 2002 WI 93, ¶¶ 49-52, 254 Wis. 2d 442, 647 N.W.2d 189, which recognizes that constitutional instructional error is subject to application of the harmless error analysis articulated in Neder v. United States, 527 U.S. 1, 15 (1999).
¶ 76. In Neder, the United States Supreme Court set forth the test as follows: "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" Id. at 18. I am satisfied that under the harmless error analysis, if there was instructional error here, it was harmless for the reasons outlined in the majority opinion.
II
¶ 77. Since this case can be, and has been, resolved by the majority on the basis of harmless error, there is no need whatsoever for the majority to reach *626out unnecessarily and overrule State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, 647 N.W.2d 421. Majority op., ¶ 27. What is even more difficult to understand is why this is being done when the majority acknowledges that Ferguson is not even relying on Mikkelson. Majority op., ¶ 27 n.8.
¶ 78. The majority doesn't stop with overruling Mikkelson, but rather proceeds to decide that a warrantless entry into a person's home should be evaluated on the basis of whether the law enforcement officers are dealing with an offense that is "a jailable or nonjailable offense." Majority op., ¶ 29.
¶ 79. I sincerely 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."
¶ 80. Knowing that in many communities charging decisions involve a choice between a criminal offense or an ordinance violation — e.g., possession of marijuana — this new test appears to be totally unworkable. It offers the police officers on the front line almost no real guidance in deciding whether a warrantless entry into someone's home will ultimately be justified.
¶ 81. All of this unnecessary reaching out by the majority is without sufficient recognition of the protections for persons and property embodied in the Fourth Amendment to the United State Constitution and in Article I, Section 11 of the Wisconsin Constitution. The new test adopted by the majority doesn't involve a seizure on the street or in an automobile, but rather a seizure of a person after entry into the person's home without a warrant. As Justice Antonin Scalia has rightly pointed out, " 'At the very core' of the Fourth *627Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961), and citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Payton v. New York, 445 U.S. 573, 586 (1980)).
¶ 82. For the reasons stated, I respectfully concur.
¶ 83. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON, and Justice ANN WALSH BRADLEY join Part II of this concurrence.