Breaching the castle

ICE policy allowing warrantless arrests inside homes clashes with Fourth Amendment

The Fourth Amendment, like the rest of the Bill of Rights, unquestionably limits the federal government’s power. Added to the U.S. Constitution by people who remembered distastefully a time when British authorities entered homes and businesses whenever they liked, the amendment’s point is make it more difficult for the government to arrest people and look through their belongings. The Fourth Amendment does not exempt immigration agents. An ICE policy authorizing agents to enter homes without a warrant issued by a judge flies in the face of how courts have interpreted, and law enforcement agencies have applied, this core constitutional principle.

Photo by Bradley Andrews on Unsplash

Added to the U.S. Constitution in 1791, just three years after the Constitution itself became the new nation’s foundational law, the Fourth Amendment consists of two parts: the Reasonableness Clause and the Warrant Clause. The first part bars unreasonable searches and seizures of people and their homes. The second part explains that the government can search or seize people or places if it first obtains a warrant supported by probable cause of illegality. Crucially, it’s the role of judges, not law enforcement officers, to decide when the evidence supports issuing a warrant. As the Supreme Court explained in 1948, “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

The agency’s policy, issued internally last May and revealed this week in a whistleblower complaint, tosses the “neutral and detached magistrate” from the Fourth Amendment. Todd Lyons, who currently serves as ICE’s top official despite not having received Senate confirmation, authorized ICE officers to arrest people “in their place of residence” if an immigration judge had already ordered them removed from the United States. The memo encourages officers to obtain an administrative warrant, which is issued by ICE supervisors without input from a judge. The memo does not require that officers obtain an administrative warrant. Before entering a home, the memo requires officers to knock, identify themselves, and give anyone inside “a reasonable chance to act lawfully.” If no one opens the door, officers are allowed to use “a necessary and reasonable amount of force” to enter. Once inside the home, officers can seize evidence of any crime, including offenses having nothing to do with immigration law, that they observe.

The broad power to enter private homes that the memo authorizes is a major departure from traditional law enforcement practices. Courts considering the Fourth Amendment’s limits on the government’s power to enter a private residence regularly refer to the home as a person’s “castle,” illustrating just how strong U.S. law considers the walls of a home to be in the face of a government official’s prying eyes. “Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” the Supreme Court wrote in 1972. A few years later, in 1980, it added, “searches and seizures inside a home without a warrant are presumptively unreasonable.”

The fact that there might be evidence of illegal activity inside a home, along with the people who are allegedly violating the law, is not reason enough to ignore the Fourth Amendment’s restraints. In a 1961 decision involving a chaotic physical altercation between Cleveland police officers and a colorful woman with ties to the city’s underworld, Dollree Mapp, the Supreme Court explained that the Fourth Amendment recognizes a “right of privacy.” Having failed to get a warrant from a judge before forcing their way into her house, the police officers could not then use “lewd and lascivious books” found inside to prosecute her for violating Ohio’s obscenity laws.

Lyons’s memo implies that the Fourth Amendment allows ICE agents to enter private homes on much easier terms than every other law enforcement officer in the United States. Equipped only with “reason to believe” that a migrant who has been ordered out of the United States lives in the home, agents can force their way inside. This is exactly the kind of government conduct that the Fourth Amendment prohibits. “No man’s house can be forcibly opened, or he or his goods be carried away after it has thus been forced,” except when the law enforcement officer is “furnished with a warrant,” wrote the political philosopher Francis Lieber in a passage from an 1859 book that the Supreme Court quoted in Weeks v. United States, an important case from the early twentieth century.

Immigration agents don’t get a constitutional pass to enter homes simply because the kind of violation of immigration law that leads to an immigration judge’s removal order is a civil, rather than criminal, infraction. The Fourth Amendment’s “limitations and restraints” on government officers exist for the benefit of “all alike, whether accused of crime or not,” the court wrote in Weeks. More recently, a federal judge in California concluded in 2024 that an ICE “administrative warrant is insufficient to enter the constitutionally protected areas of a home.” That case, Kidd v. Mayorkas, involved situations in which agents walked into yards and onto porches of homes where they arrested people, but never stepped foot inside anyone’s home. Any arrest that occurs after agents force their way into a home, as permitted by Lyons’s memo, would be more egregious. Because Kidd applies in central California, the Lyons memo doesn’t apply in that region.

Authorizing ICE agents to barge into homes without bothering to obtain a warrant from a judge is an invitation to dramatically expand the government’s power. An incident from Minneapolis this week shows what this looks like in practice. Immigration agents took a battering ram to ChongLy Scott Thao’s home, arrested him, and walked him through falling snow wearing nothing more than boxers and Crocs. The agents did not show a warrant to any of the people inside the home, according to Thao’s family members. The agents claimed they were looking for two men who they believed live there. Thao’s relatives said they told agents at the time that they do not know the men. Thao is a U.S. citizen.

ICE’s policy is certain to come under additional scrutiny as its agents continue their aggressive enforcement tactics.