dissenting:
I respectfully dissent. I do not agree with the majority’s finding that Officer Shepard’s acts were authorized. In reaching its conclusion, the majority has disregarded our supreme court’s holding in Villarreal and the Third District’s holding in Hilgenberg, 223 Ill. App. 3d 286, 585 N.E.2d 180. Further, a reversal in this case would not carry with it the public policy concerns voiced by the majority.
In Villarreal, our supreme court declined to characterize an unlawful police entry as an authorized act. Villarreal, 152 Ill. 2d at 375, 604 N.E.2d at 926. The Villarreal court applied its holding in Locken, 59 Ill. 2d 459, 322 N.E.2d 51, which held that an unlawful arrest is an authorized act, after it concluded that the focus of the officers in Villarreal was to arrest the defendant. Villarreal, 152 Ill. 2d at 375, 604 N.E.2d at 926. The defendants in Villarreal claimed that the Locken decision was not controlling in their case because Locken involved resisting an unlawful arrest by police officers. The defendants urged that, in contrast, their case involved an unlawful entry into their home.
In reaching its decision, the Villarreal court made the following clarification:
“Defendants are correct in claiming that the crucial fact in Locken was the undertaking of an unlawful arrest by a police officer, and that Locken is not relevant to obstruction of an unlawful entry into a person’s home by a known officer.” (Emphasis added.) Villarreal, 152 Ill. 2d at 375, 604 N.E.2d at 926.
The majority dismisses Villarreal and the above excerpt as “dictum.” 346 Ill. App. 3d at 219. Dicta come in two forms: obiter and judicial. People v. Williams, 204 Ill. 2d 191, 206-07, 788 N.E.2d 1126, 1136 (2003).
“Judicial dicta are comments in a judicial opinion that are unnecessary to the disposition of the case, but involve an issue briefed and argued by the parties. Black’s Law Dictionary 465 (7th ed. 1999). Judicial dicta have the force of a determination by a reviewing court and should receive dispositive weight in an inferior court. Cates v. Cates, 156 Ill. 2d 76, 80[, 619 N.E.2d 715, 717] (1993).” Williams, 204 Ill. 2d at 206, 788 N.E.2d at 1136.
Our supreme court recently revisited this issue in Nudell v. Forest Preserve District of Cook County, 207 Ill. 2d 409, 799 N.E.2d 260 (2003). In Nudell, the supreme court applied its definitions of obiter and judicial dictum from Cates, affirming its holding that judicial dictum should be followed unless found to be erroneous. The Villarreal court’s statement meets the definition of judicial dictum. Therefore, as mandated in Cates v. Cates, 156 Ill. 2d 76, 80, 619 N.E.2d 715, 717 (1993), and Nudell, 207 Ill. 2d 406, 799 N.E.2d 260, it is binding upon our court.
The Villarreal court cited, with favor, the holdings in Swiercz, 104 Ill. App. 3d 733, 432 N.E.2d 900, and Young, 100 Ill. App. 2d 20, 241 N.E.2d 587. Swiercz held that an unlawful entry by an officer is not an authorized act for the purpose of the resisting statute; Young held that an unlawful search by an officer is not an authorized act for the purpose of the resisting statute. The Villarreal court stated that its holding was not inconsistent with Swiercz or Young: “Clearly, the case at hand is distinguishable from both Swiercz and Young, as the focus of the officers in this case was to arrest [a third party], and not to search defendants’ home.” Villarreal, 152 Ill. 2d at 375-76, 604 N.E.2d at 926.
In limiting its holding to instances of resisting arrest, the Villarreal court specifically refused to sanction resisting unlawful entry:
“[I]t is important to stress that the conclusion of this court is based upon the very narrow circumstances before us, and that we do not intend to expand the police power to invade the sanctity of an individual’s home. We certainly do not intend to diminish an individual’s rights and protections offered him under the fourth amendment.” Villarreal, 152 Ill. 2d at 380, 604 N.E.2d at 928-29.
By recognizing an unlawful entry as an authorized act, the majority here has chosen to follow a path that our supreme court specifically declined to take. Our supreme court has been presented with an opportunity to authorize unlawful entry and has declined to do so. This precedent is binding on this court and must be followed.
The majority expands the definition of “authorized act” in applying Heliczer’s definitions. The Heliczer definitions may be appropriate in the context of agency law but are overly broad in the context of police activity. Under these sweeping definitions, any police activity conducted while the officer is “on the clock” is authorized. Police brutality in the search or arrest situation would now be considered “authorized” because it could not be categorized as a “frolic.”
The majority also ignores Hilgenberg. The court in Hilgenberg considered facts similar to those before us: police officers approached a house in the course of investigating a nonfelony complaint (unlawful consumption of alcohol and disorderly conduct). Hilgenberg, 223 Ill. App. 3d at 290, 585 N.E.2d at 184. However, in Hilgenberg, 223 Ill. App. 3d at 287, 585 N.E.2d at 182, when the officers knocked on the door, the defendants refused to open the door or permit them entry. The trial court dismissed the obstructing-a-peace-officer complaints against all 36 defendants. Affirming the trial court, the Hilgenberg court stated:
“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.” (Emphasis added.) Hilgenberg, 223 Ill. App. 3d at 290-91, 585 N.E.2d at 184.
In our case, Shepard had no right to insist that the door remain open. Shepard admitted that he entered the apartment when he physically prevented its closure. Absent exigent circumstances, a nonconsensual warrantless entry into a private residence while investigating a loud music complaint is unjustified. See People v. Olson, 112 Ill. App. 3d 20, 444 N.E.2d 1147 (1983).
Defendant did not commit an act of violence toward Shepard. He was never charged with aggravated battery. Defendant simply asserted his fourth amendment right to refuse a warrantless entry by attempting to close the door.
The majority implies that categorizing this officer’s acts as unauthorized will encourage violence against the police. While it is true that an officer’s unlawful and unauthorized entry may be lawfully resisted, an individual has no right to physically harm that officer. The Criminal Code, in the aggravated battery statute, protects police officers from violence. Aggravated battery is a Class 3 felony. 720 ILCS 5/12 — 4 (West 2002).
The aggravated battery statute protects officers during a broader range of police activity. Under the language of the aggravated battery statute, an officer need not be engaged in an “authorized act” to be protected from battery.
Further, the State would have the option of bringing both resisting-a-peace-officer and aggravated battery charges if an individual’s resistance became violent. The majority should not attempt to rectify the State’s failure to bring an aggravated battery charge with its opinion.