dissenting:
In this case, we are called upon to address a Champaign municipal ordinance which makes it illegal to “knowingly resist or obstruct the performance by *** a peace officer *** of any authorized act within the peace officer’s official capacity.” (Emphasis added.) Champaign Municipal Code, art. 2, § 23 — 21(a) (eff. April 18, 1988). By its terms, this ordinance only makes illegal resistance to or obstruction of an “authorized” act. The ordinance does not, however, define the term “authorized”; therefore, it would appear then that the only reason why we would grant leave to appeal in such a case is so that we might address what could be the only issue of real importance in the prosecution of cases under this ordinance or statutes similar to it:3 What constitutes a proper or “authorized” act or order? In this particular case, the issue would seem clear: In investigating a complaint of noise, was Sergeant Shepard’s order to leave the door open authorized? Unfortunately, my colleagues do not answer this question. Because they fail to examine whether Sergeant Shepard’s actions were authorized, I cannot join in their opinion and respectfully dissent.
Rather than address the critical question in this case of whether Sergeant Shepard’s order to leave the door open was “authorized,” the court today holds that Sergeant Shepard’s actions did not “trammel” defendant’s fourth amendment rights solely because defendant did not live at the apartment Shepard was investigating. 214 Ill. 2d at 244-45. Noting that “Illinois courts have repeatedly held that persons who are guests or merely present in someone else’s home or on another person’s property when it is searched do not have the right to contest the legality of that search and seizure,” the court holds that defendant “had no right to complain that the actions by Sergeant Shepard violated the fourth amendment.” 214 Ill. 2d at 245. Leaving aside the fact that this case does not concern an actual search or seizure, the court’s analysis leaves defendant in the untenable position of being unable to challenge whether Sergeant Shepard’s initial demand that the apartment door be kept open was “authorized,” as is required under the ordinance in question.
I note that in ruling that defendant had violated the municipal ordinance, the circuit court found that the germane question in this case was whether defendant’s actions defeated the “lawful authority” of the officer. The circuit court correctly believed that to answer that question, one first had to define what constituted the “the lawful authority” of the officer. According to the circuit court’s ruling, “[t]he door is opened, he [Sergeant Shepard] has a right to look in, he has right to continue to look in to that premises. Does the defendant take an act? Yes. He’s not refusing to consent to entry. He’s taking an affirmative act in order to prevent the officer from doing what he’s lawfully entitled to do, that is look through an open door which has been opened consensually.” The appellate court upheld the circuit court’s finding on the basis that Officer Shepard “was engaged in an ‘authorized act’ when defendant forcefully closed the door on Officer Shepard’s arm.” 346 Ill. App. 3d at 217.
According to the facts, after Champaign police received a complaint about a loud party, Sergeant Shepard went to the address that was the subject of the complaint and heard loud music emanating from the apartment in question. The officer observed the location for about 10 minutes, decided to speak to a resident of the apartment, and, to that end, knocked on its door. Defendant answered the door, opening it only slightly. Sergeant Shepard asked defendant if he was a resident of the apartment, and defendant responded truthfully that he was not. At this point, defendant’s behavior was not a problem. Sergeant Shepard then requested that defendant go and get a resident of the apartment so that the officer could speak with that person. Defendant indicated he would comply by agreeing to do so. Defendant then began to shut the door, at which point the officer told defendant not to close the door, but to leave it open. By what authority does the officer have to order an occupant of a private residence, who is complying with the officer’s request to get a resident of the premises, to keep the front door to that private residence ajar? The majority’s analysis fails to provide us with the answer, as it holds that “[defendant’s inability to assert a fourth amendment violation is fatal to his defense. Without such a violation, defendant has no basis for claiming that Shepard’s actions exceeded his legal authority and were not ‘authorized’ within the meaning of the City’s ordinance.” 214 Ill. 2d at 247.
As I noted above, the circuit court found that, once defendant answered the door, the police officer had the “right” to “continue” to look into the premises. I disagree. Defendant opened the door, ascertained that someone was present, acknowledged that the person knocking was a police officer, and agreed to comply with that officer’s request to get the owner. It cannot be said that defendant’s act of initially and consensually opening the front door authorized Sergeant Shepard to insist that the door be kept open while the owner was being summoned. I know of no law which authorizes a police officer to insist, in the first instance, that a front door of a private residence be kept open while an occupant complies with a request to bring the owner to the door. While I understand that Sergeant Shepard may have had prior unsuccessful experiences in having people return to the front door, nothing about Shepard’s interaction with defendant suggested that the same thing would happen here.
Contrary to my colleagues in the majority, I believe People v. Hilgenberg, 223 Ill. App. 3d 286 (1991), provides the proper analysis for such cases. There, 36 defendants were charged with the offense of obstructing a peace officer, in that they “ ‘refused to open the door or permit *** entry’ ” to the officer when he investigated a complaint of unlawful consumption of alcoholic beverages and disorderly conduct in connection with a loud party. Hilgenberg, 223 Ill. App. 3d at 287. In affirming the circuit court’s dismissal of the charges, the appellate court held as follows:
“Although the officer may have been authorized in the course of his investigation to request that the door be opened or that he be permitted to enter, it is significant that the officer had no right to open that door himself or insist that it be opened or that he be allowed to enter. The occupants of the premises had a right to refuse the request.” (Emphases in original.) Hilgenberg, 223 Ill. App. 3d at 290-91.
The court further noted that “[a]lleging ‘an official police investigation’ does not constitute an ‘authorized’ act requiring defendants to open the door *** [because] [a]bsent specific factual allegations that the officer was acting on the basis of a warrant, consent, or probable cause to arrest coupled with exigent circumstances, the complaint does not state an offense.” Hilgenberg, 223 Ill. App. 3d at 294. For these reasons, the court concluded that the officer could not lawfully order the door to be opened.
The court states that Hilgenberg “cannot be read as supporting a contrary conclusion” because the opinion does not describe the relationship of the defendants to one another or to the dwelling they occupied. 214 Ill. 2d at 245 n.2. The court has misconstrued the concept of standing in this case. Defendant, who is being prosecuted under this ordinance, certainly has standing to challenge whether the officer’s actions were authorized. Sergeant Shepard had no legal right to insist that defendant leave the door to the apartment open while defendant went to fetch the owner of the apartment. In my view, the fourth amendment does not come into play here since Sergeant Shepard technically did not “search” the apartment nor did he “seize” anything from it.4
I believe the court may be straining in its analysis in this case because defendant forcefully slammed the apartment door on Sergeant Shepard’s right arm. Although the law allows for resistance to unauthorized police acts, no citizen has the right to physically harm a peace officer. Under the Criminal Code, it is a Class 3 felony to commit a battery upon a peace officer. See 720 ILCS 5/12 — 4(b)(6) (West 2002). Under the language of the aggravated battery statute, an officer need not be engaged in an “authorized act,” but rather only be injured while engaged in “official duties.” See 720 ILCS 5/12 — 4(b)(6) (West 2002). Thus, the statute protects officers from violence during a broader range of police activity. It seems to me that defendant’s actions fall under the offense of aggravated battery and not resisting an officer. In this case, however, defendant was not charged with aggravated battery. The court should not use its opinion to rectify the State’s failure to do so.
For the foregoing reasons, I dissent.
JUSTICE KILBRIDE joins in this dissent.A provision in the Criminal Code of 1961 makes it a Class A misdemeanor for a person to “knowingly resist[ ] or obstruct[ ] the performance by one known to the person to be a peace officer *** of any authorized act within his official capacity.” 720 ILCS 5/31— 1(a) (West 2002). Like the Champaign ordinance, the statute does not define the term “authorized.”
Of course, had defendant left the door open as the officer had requested, anything seen in “plain view” may have given the officer the probable cause to expand the nature of his investigation. For example, had he seen a partygoer smoking marijuana or snorting cocaine, the investigation would have expanded from a simple disturbing the peace complaint to a drug raid. In such a situation, the State would surely argue that defendant did not have to leave the door open, but merely “consented” to the request to leave the door open.