This article was posted on Tuesday, Jul 01, 2014

It is not often a lawyer gets to argue a legal question that has never been considered before, but Institute for Justice’s Litigation Director, Dana Berliner, did just that in front of the Minnesota Supreme Court [last year].  After more than six years of legal battles, Institute for Justice’s clients – a coalition of landlords and tenants from Red Wing,Minnesotawill soon finally know whether their state’s constitution will be interpreted to force the government to show probable cause before entering their property without permission during administrative searches.

You would think this question would be a no-brainer.  After all, the Fourth Amendment says the government needs “probable cause” to get a warrant.  But, in 1967, the U.S. Supreme Court read that language out of the federal Constitution in the context of rental inspections, where cities inspect rental properties to look for housing code violations.  The Court’s decision emboldened city governments to adopt rental licensing laws mandating intrusive house code inspections of tenants’ homes and landlords’ properties, even when the government has absolutely no evidence that anything is wrong.   Under these regimes, our most cherished personal spaces and possessions are thrown open to the unwanted eyes of government agents.

This is a huge problem.  Many people are understandably very protective about whom they let into their homes.  By merely walking into someone’s residence and seeing their possessions, you can learn all kinds of things about their private life.  As John Monroe, one of our tenant clients says, “This is my home.  It is where I live; it is me.”  The last thing he wants is an agent of the city nosing around in his space.

But help may soon be on the way.  Under our system of federalism, states can protect individual liberty under their own constitutions when the U.S. Supreme Court fails to do so.  And so, Institute for Justice has asked the Minnesota Supreme Court to rule that the Minnesota Constitution requires probable cause before the government can perform an unwanted inspection.  This question – whether a state constitution protects against these unconsented rental inspections is one that no state supreme court has ruled on before, one way or another.  Thus a ruling for our clients will reverberate across the country.

This case is a testament to Institute for Justice’s tenacity and our clients’ perseverance.  The case was filed in November 2006 and since then has been before 15 different judges in four different courts, traveling up and down elevators of justice until finally reaching where we hoped to be all along.

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TheMinnesotainjustices asked Institute for Justice and the city’s attorney a slew of questions, many of which indicated they had serious concerns over the scope of the inspections and the U.S. Supreme Court’s deviation from traditional constitutional principles.  This gives us hope and our clients hope that soon we can slam the door shut on overreaching government inspectors.


After the above article was published, On May 31, 2013, the Minnesota Supreme Court issued a decision where it failed to answer the ultimate question of whether the government needs a warrant backed by evidence to enter a tenant’s home.  Instead, it ruled the question was not properly before it, leaving it for another day.

However, Justice Paul Anderson authored a concurring opinion where he stated that when the court does answer the question it should rule that warrants that are not backed by evidence – like those Red Wing has repeatedly applied for – are unconstitutional. Since that ruling, Red Wing has not decided whether to go forward to again seek these warrants.  Therefore, the issue may come to the court again soon, either from Red Wing or anotherMinnesotamunicipality.

Anthony Sanders is an Institute for Justice’s Minnesota Chapter attorney. Liberty and Law is published bimonthly by the Institute for Justice, which, through strategic litigation, training, communication, activism and research, advances a rule of law under which individuals can control their destinies as few and responsible members of society.  Institute for Justice litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties and to restore constitutional limits on the power of government.  In addition, Institute for Justice trains law students, lawyers and policy activists in the tactics of public interest litigation.

Through these activities, Institute for Justice challenges the ideology of the welfare state and illustrates and extends the benefits of freedom to those who full enjoyment of liberty is denied by government.  Reprinted with permission from Institute for Justice’s Liberty & Law publication, available at

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