Whistleblowers have released a secret ICE memo advising agents that they can forcibly enter homes of alleged illegal aliens without a judicial warrant. The memo advises agents that they may forcibly enter homes when they have a so-called administrative warrant, that is not issued by a neutral and independent magistrate, but rather by an employee of the agency obtaining the administrative warrant (in short Article II warrants).
The law on this is well settled. While such administrative warrants allow agents to arrest the subject in public spaces they do not permit agents to forcibly enter homes or residences. That requires a legitimate judicial warrant signed by an Article III judge.
The whistleblower complaints would do much to explain numerous violent ICE home invasions conducted without judge issued arrest warrants.
You may wonder what the reason is for the distinction between arresting someone in a public place vs. the home. As a starting point, the 4th Amendment is specific in naming homes as an independent protected area requiring judge determined probable cause to intrude, something the United States Supreme Court made clear in Payton v. New York, 445 U.S. 573 (1980).
“The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. To be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant . . . It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”
The warrant referred to in this quote is judicial, not administrative. Deciding that chief evils are justified is not delegated to the branch seeking to commit the evil.
The British colonial version of the administrative warrant were called “Writs of Assistance” and our Founders wrote the 4th Amendment, in part, to end the tyranny they brought to those residing in the colonies. Revolutionary era lawyer James Otis, often described as the founder of the 4th Amendment, wrote:
“One of the most essential branches of English liberty is the freedom of one’s house . . . This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.”
Those words were written in 1761. However, Otis’s vivid description of the consequences of such broad power to “custom-house officers” and their “menial servants” is exactly what we are witnessing in America today with the modern day “custom-house officers” of DHS and their “menial servants” of masked ICE agents violently breaking into American homes. As with the writ of assistance, the self issued administrative warrant may be issued on “bare suspicion” and “without oath.”
The ICE memo, stating this clearly unconstitutional position, is attached as Exhibit 1 to the Whistleblower Complaint. The memo acknowledges that “DHS has not historically relied administrative warrants to arrest aliens” in the their residences. However, the memo claims “the U.S. Constitution, the Immigration and Nationality Act, and immigration regulations, do not prohibit relying on the administrative warrant for this purpose.”
The United States Supreme Court disagrees. In Johnson v. United States, 333 U.S. 10, (1948) the court held that the determinations of probable cause for a warrant must be made by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” An immigration official, whose office is founded on the executive branch’s Article II power to enforce law is precisely the kind of officer engaged in ferreting out crime the court makes clear cannot make this call. Rather, that power is reserved to judges established under Article III whose duty is to impartially administer justice. See also, Michigan v. Summers, 452 U.S. 692 (1981) emphasizing the requirement for a “neutral magistrate” to provide the “special authorization [for police] to thrust themselves into the privacy of a home.” Lower courts have consistently applied Payton, Johnson and Summers as requiring immigration agents have a judicial warrant to enter a home, and that an administrative warrant is not sufficient.
It is also telling that the memo, dated May 12, 2025 and signed by acting ICE Director Todd Lyons, was kept secret from the American people. This major change in policy was never publicly announced, or defended, and we know about it now only because two brave whistleblowers gave this document to members of Congress. If the ICE position was righteous, or even defensible, why did they conceal it?
With nothing more than a conclusory secret memo ICE has green lit massive violations of Constitutional rights, right our Founders protected due to their experiences with tyrannical government. Many in America now face that same tyranny.
