¶1(dissenting).
¶2I respectfully dissent. On remand from the United States Supreme Court, the court now holds that Carter and Johns did not have a reasonable expectation of privacy under the Minnesota Constitution to challenge the search of the apartment. Surely their presence in an apartment with the blinds drawn and the windows and doors closed gave them an expectation of privacy that was reasonable. I would therefore hold that they did have such an expectation. The justification for the court’s opinion is that the language of Article I, Section 10 of the Minnesota Constitution is identical to the search and seizure language of the Fourth Amendment of the United States Constitution under which the Supreme Court, in a 5M, decision, concluded that Carter and Johns had no reasonable expectation of privacy. However, “[w]hether the state constitution has language similar to that of the federal Constitution or not, states are free to interpret their own constitutions” to provide greater protection for individual rights than minimally provided by the federal Constitution. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 836 (Minn.1991) (citing State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985)); see also PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). Based on the facts of this case, I see no reason why we should not afford the citizens of Minnesota greater protection from governmental intrusion than currently afforded by the federal constitution.
¶3While the Supreme Court has set forth an albeit different rule regarding an individual’s reasonable expectation of privacy, the Court has not necessarily set forth the better rule. The Supreme Court’s limit on Carter and Johns’ expectation of privacy as adopted by our court appears to turn on the fact that they were engaged in an illegal commercial activity. If we similarly base our jurisprudence regarding the expectation of privacy wholly on the type of conduct involved, then we will inevitably limit the meaning of the search and seizure provision of our constitution to provide protection only for those engaging in activities we find acceptable. I do not believe an individual’s reasonable expectation of privacy is so narrow. See Friedman, 473 N.W.2d at 830 (stating that “states have been particularly attentive to the protection of those citizens accused of crimes”). Where it is a close question of whether an individual’s expectation of privacy is reasonable, as evidenced by the narrow 5-4 majority, there is no compelling reason to blindly follow the Supreme Court’s lead to provide less protection for Minnesota citizens. The Supreme Court recognized the broader reach of the protection against unreasonable searches and seizures even in a “commercial” setting in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (involving a defendant who was conyicted of transmitting wagering information by telephone across state lines). In concluding that the government’s eavesdropping activities violated the petitioner’s reasonable expectation of privacy, the Court stated that “what [an individual] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Id. at 351-52, 88 S.Ct. 507. We should extend that protection here.
¶4*661If I am incorrect and it is not the illegal nature of the conduct that drives today’s decision, then every Minnesotan has lost their reasonable expectation of privacy because the limits placed on the reasonableness of one’s expectation of privacy that the court announces today represents the maximum level of protection that Minnesota citizens can expect. Minnesota citizens visiting another person’s home for whatever purpose will be surprised to learn that under our law they no longer have an expectation of privacy in that home. Our citizens deserve more.