¶ 49. (concurring). I agree with the majority opinion and the State that the charge against Reed for obstructing an officer should stand and that the cause should be remanded to the circuit court for further proceedings. I write because I view the majority's overruling of State v. Espinoza, 2002 WI App 51, 250 Wis. 2d 804, 641 N.W.2d 484, as unnecessary and unwise.
I
¶ 50. Overruling Espinoza is unnecessary because, as the court of appeals held and the State agrees, Reed's statements fall outside the "exculpatory no" exception to the obstructing statute set forth in Espinoza. Reed falsely implicated someone else as the driver of the car. Reed went beyond "a good faith desire *94to defend against an accusation."1 Thus the majority opinion needlessly overreaches to overrule Espinoza and adjudicates an issue that this court need not decide on the facts present in the instant case.
II
¶ 51. In addition to being unnecessary, overruling Espinoza is unwise for several reasons.
¶ 52. First, Espinoza is a statutory interpretation case, interpreting Wis. Stat. § 946.41. Without even mentioning the rule and without providing sufficiently strong reasons, the majority opinion disregards the rule that this court does not overturn a judicial interpretation of a statute. The judicial interpretation of a statute ordinarily becomes part of the statute that only the legislature can overturn.2 The legislature has not reacted to Espinoza.
¶ 53. Second, in overturning Espinoza, the majority opinion overturns previous cases supporting the court of appeals' conclusion in Espinoza that to sustain an obstructing charge, some actual obstruction of the police function must exist.3 Stare decisis, let the deci*95sion stand, is a bedrock principle in our system of justice that should govern the present case.
¶ 54. Third, the majority opinion contravenes the intent of the legislature. As the Espinoza court explained, the legislature intended to circumscribe a suspect's conduct that would thwart or frustrate the *96police function.4 The legislature sought to prevent the waste of time, energy, and expense of having law enforcement officers run down false leads concerning criminal conduct. Thus, the Espinoza court of appeals held that a person's denial of guilt when confronted by a police officer about an alleged crime cannot be a basis for an obstructing-an-officer charge.5
¶ 55. The Espinoza court got it right: "And though truth and morality may have required Espinoza to answer in the affirmative when he was questioned regarding the tire incident, we cannot say that the law required him to do so."6
¶ 56. Fourth, the majority opinion ignores the rationale of Espinoza and this court's decision in Peters v. State, 70 Wis. 2d 22, 233 N.W.2d 420 (1975), upon which Espinoza is based. Peters correctly interpreted Wis. Stat. § 946.41. The Peters court distinguished between statements by a suspect "knowingly and intentionally made for the purpose of deceiving and misleading the police, and not simply [made] out of a good-faith desire to defend against an accusation of crime."7
¶ 57. Peters and Espinoza got it right. The statute does not encompass all of a suspect's false answers or false statements uttered with the intent to exculpate himself or herself against a criminal charge in the hope of preventing prosecution.8
¶ 58. In contrast, the majority opinion recapitulates various dictionary definitions and employs a literal reading of the statute to reinterpret Wis. Stat. *97§ 946.41.9 In declaring that suspects have the right to remain silent and should not he, the majority opinion renders an illogical result logical and gives the result an appearance of being morally acceptable. The majority opinion errs. The majority opinion has disregarded the principles underlying the Fifth Amendment, the guarantee against self-incrimination. The result is fiction built on fiction.
¶ 59. The majority opinion forgets that the "exculpatory no" doctrine has its roots in a "latent distaste for an application of the statute that is uncomfortably close to the Fifth Amendment."10 Numerous federal and state court decisions starting as far back as 195311 have adopted the Espinoza approach, cognizant of the Fifth Amendment self-incrimination implications.12 Remaining insensitive to the dangers to liberty interests inherent in a literal reading of the statute, the majority opinion discards Espinoza and fails to replace the "exculpatory no" doctrine with any other safeguard.
*98¶ 60. Fifth, the majority opinion unwisely utilizes a 5-4 majority opinion in Brogan v. United States, 522 U.S. 398 (1998), interpreting not the federal constitution, but a federal criminal statute that differs from Wis. Stat. § 946.41. The Brogan case was decided on January 26, 1998, four years before Espinoza was decided on January 23, 2002. A U.S. Supreme Court decision interpreting a federal statute (that differs from the Wisconsin statute) is not persuasive in overruling a Wisconsin decision that was handed down subsequent to the U.S. Supreme Court decision.
¶ 61. Smitten with the lead opinion in Brogan, the majority opinion in the present case overlooks the concurrences and dissents in Brogan. Concurring Justices Souter and Ginsburg describe in dismay "the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes."13 They call on Congress to examine the statute to remove the risks inherent in the statute.
¶ 62. Dissenting Justices Stevens and Breyer agree with the litany of horrors Justices Souter and Ginsburg describe. These dissenting justices contend that the majority is overturning a long-standing interpretation of the federal statute. They urge the Court to "show greater respect for the virtually uniform understanding of the bench and bar [about the meaning of the statute] that persisted for decades with... the approval of this Court as well as the Department of Justice."14 The four justices (straddling both sides of the outcome in Brogan) have the better argument than the five justices, as far as I am concerned.
*99¶ 63. Also supporting my position is the influential American Law Institute Model Penal Code. Under the Code, giving false answers to inquiries initiated by law enforcement does not confer liability for hindering prosecution on an obstruction of justice theory. A person commits an offense when he or she volunteers false information to a law enforcement officer.15 The commentary explains that the exclusion of false answers in response to police questioning "represents a delicate policy judgment, premised in part on the fear that a wider reach . .. would invite abusive charges by police against persons interviewed in the course of investigating crime."16 Other sections of the criminal code are better suited, say the commentators, to implement a penal policy on false statements to the police.17
¶ 64. Sixth, a literal reading of the obstruction statute enables the statute to become an instrument for abuse. The Espinoza court declared "We must keep in mind: 'The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.' Sherman v. United States, 356 U.S. 369, 372 (1958)."18
¶ 65. Under the majority opinion, law enforcement officers are empowered to manufacture crimes *100when none existed by posing questions to suspects who are not entitled to (or given) a Miranda warning because the suspects are not yet "in custody."19 At oral argument before the U.S. Supreme Court in Brogan, the U.S. Solicitor General conceded that the federal false statement statute could be used to "escalate completely innocent conduct into, a felony."20
¶ 66. Here are some examples of what may be coming under the majority opinion's interpretation of Wis. Stat. § 946.41.
¶ 67. A driver is stopped for a civil speeding violation. In response to the question whether she was going over the 35 mile an hour speed limit, she says no. She can be criminally prosecuted for denying that she was speeding.
¶ 68. Another example: An officer is on the lookout for a robbery suspect. The officer stops a suspect. The suspect somewhat matches the description but the car the suspect claims as his does not. The following dialogue ensues:
Q. Do you know anything about a robbery tonight?
A. No.
Q. Did you drive a different car earlier this evening?
A. No.
Q. Did you have a gun earlier tonight?
A. No.
*101Q. Do you have any illegal substances on you or in your car?
A. No.
¶ 69. Each of the responses is an "exculpatory no." The suspect appears nervous at the questioning, and the officer believes the suspect is lying. She concludes that she has probable cause to arrest the suspect on a charge of obstructing an officer by lying but does not make an arrest.21 The officer searches the suspect and the area surrounding the suspect, finds marijuana, and immediately arrests the suspect for possession of a controlled substance. The suspect is never arrested for or charged with or convicted of robbery or obstructing an officer. The only charge and conviction is for possession of marijuana. The search and the conviction will be upheld. See State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277 (search preceding arrest when there is probable cause to arrest; arrest for different offense on basis of evidence found in the search; search valid).
¶ 70. Far-fetched? I think not. Look at the reported cases described in Justice Ginsburg's concurrence in the Brogan case.22 In those cases federal law enforcement officers induced a denial for the express purpose of obtaining incriminating statements for prosecution under the obstruction statute rather than to obtain information.
¶ 71. When the legislature enacts a statute, it intends the statute to make sense in application. A court's interpretation of a statute should likewise make *102sense. The court should not interpret a statute to set up suspects and enable law enforcement to "manufacture" crimes or engage in warrantless searches on the basis of manufactured crimes. The majority opinion's interpretation of Wis. Stat. § 946.41 unnecessarily removes the Espinoza safety net preventing the unfortunate results anticipated by this court in 1970 in Peters. This case is a step backwards for law enforcement, public safety, and constitutional rights.
¶ 72. For the reasons set forth, I cannot join the majority opinion.
¶ 73. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
State v. Espinoza, 2002 WI App 51, ¶ 12, 250 Wis. 2d 804, 641 N.W.2d 484.
See, e.g., State v. Rosenburg, 208 Wis. 2d 191, 196, 560 N.W.2d 266 (1997); State ex rel. LaFollette v. Circuit Court, 37 Wis. 2d 329, 341, 155 N.W.2d 141 (1967).
Espinoza, 250 Wis. 2d 804, ¶ 22. For other cases indicating that actual obstruction is needed in an obstruction conviction, see, e.g., State v. Grobstick, 200 Wis. 2d 242, 249-54, 546 N.W.2d 187 (Ct. App. 1996) (jury was instructed that obstructing means "that the conduct of the defendant prevents or makes more difficult the performance of the officer's duties," and court held that evidence was sufficient for jury to find that defendant's conduct of jumping out window and hiding made *95officer's task more difficult); Henes v. Morrissey, 194 Wis. 2d 338, 354, 533 N.W.2d 802 (1995) (court held that not only did Henes' refusal to identify himself not constitute "giving" false information, but that "the deputies have not shown how Henes' refusal to identify himself 'obstructed' their investigation as required under the first element of the offense."); State v. Hamilton, 120 Wis. 2d 532, 356 N.W.2d 169 (1984) (like in Henes, defendant refused to identify himself and officer arrested him for obstructing an officer contrary to Wis. Stat. § 946.41(1); State defined word "obstructed" to mean hindered, delayed, impeded, frustrated or prevented officer from performing duties and argued that defendant's failure to provide information is per se violation of statute; court assumed that State's definition of obstruction was correct and held that without a showing that defendant's failure to furnish information adversely affected officer's performance.of duties, conviction had to be reversed for insufficient- evidence; actual hindrance is necessary component of Wis. Stat. § 946.41(1)).
In State v. Caldwell, 154 Wis. 2d 683, 690, 454 N.W.2d 13 (Ct. App. 1990), the court of appeals concluded that the word "obstructs" has two discrete meanings: "mak[es] more difficult" and "giv[es] false information with intent to mislead." The court of appeals concluded that under the first meaning the effect of the defendant's conduct on the officer was relevant; under the second, it was not. The court of appeals further concluded that it need not determine the precise definition of obstruction. Id. at 688. The evidence was sufficient for a conviction under both meanings of the word "obstruct"; the false information made the officer's performance of his duty more difficult.
But see State v. Hinchey, No. 89-0334-CR, unpublished slip op. (Ct. App. Sept. 20, 1989) (rejecting the "exculpatory no" doctrine).
Espinoza, 250 Wis. 2d 804, ¶ 22.
State v. Reed, 2004 WI App 98, ¶¶ 7-8, 273 Wis. 2d 661, 681 N.W.2d 568.
Espinoza, 250 Wis. 2d 804, ¶ 22.
Peters v. State, 70 Wis. 2d 22, 29, 233 N.W.2d 420 (1975).
Espinoza, 250 Wis. 2d 804, ¶ 20.
Majority op., ¶¶ 23, 24, 45.
United States v. Lambert, 501 F.2d 943, 946 n.4 (5th Cir. 1974) (discussing 18 U.S.C. § 1001, federal false statement statute).
United States v. Levin, 133 F. Supp. 88 (D. Colo. 1953).
See United States v. Moore, 27 F.3d 969 (4th Cir. 1994); United States v. Cogdell, 844 F.2d 179, 182 (4th Cir. 1988); United States v. Medina de Perez, 799 F.2d 540, 544 (9th Cir. 1986); State v. Valentin, 519 A.2d 322 (N.J. 1987); New Jersey v. Pandozzi, 347 A.2d 1, 3 (N.J. Super. Ct. 1975) (citing numerous cases).
For discussions of the "exculpatory no" doctrine, see Erica S. Perl, United States v. Rodriguez-Rios: The Fifth Circuit Says "Adios!" to the "Exculpatory No" Doctrine, 69 Tul. L. Rev. 621 (1994) (supporting doctrine); Giles A. Birch, False Statements to Federal Agents: Induced Lies and the Exculpatory No, 57 U. Chi. L. Rev. 1273 (1990) (proposes affirmative defense of the "induced lie" to replace exculpatory no doctrine).
Brogan v. United States, 522 U.S. 398, 408 (1998) (Ginsburg, J., concurring).
Brogan, 522 U.S. at 420 (Stevens, J., dissenting).
Model Penal Code § 242.3(5) at 223 (1980).
Model Penal Code § 242.3, Commentary at 235 (1980).
See, e.g., Model Penal Code §§ 241.3 (unsworn written false statements), 241.4 (false alarms to public safety agencies) (1980).
For similar Wisconsin statutes, see Wis. Stat. § 941.13 (false alarms to firefighters); § 946.31 (perjury); § 946.32 (false swearing).
Espinoza, 250 Wis. 2d 804, ¶ 21 (parallel citations omitted).
Berkemer v. McCarty, 468 U.S. 420, 441 (1984).
Brogan, 522 U.S. at 411.
For a discussion of the minimal quantum of evidence needed for probable cause, see Jefferson County v. Renz, 231 Wis. 2d 293, 317-27, 603 N.W.2d 541 (1998) (Abrahamson, C.J., concurring).
Brogan, 522 U.S. at 409-12 (Ginsburg, J., concurring).