By John E. Jones III
As Immigration and Customs Enforcement, or ICE, agents continued to use aggressive and sometimes violent methods to make arrests in its mass deportation campaign, including breaking down doors in Minneapolis homes, a bombshell report from the Associated Press on Jan. 21, 2026, said that an internal ICE memo – acquired via a whistleblower – asserted that immigration officers could enter a home without a judge’s warrant. That policy, the report said, constituted “a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches.”
Those limits have long been found in the Fourth Amendment to the U.S. Constitution. Politics editor Naomi Schalit interviewed Dickinson College President John E. Jones III, a former federal judge appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002, for a primer on the Fourth Amendment, and what the changes in the ICE memo mean.
Okay, I’m going to read the Fourth Amendment – and then you’re going to explain it to us, please! Here goes:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Can you help us understand what that means?
Since the beginning of the republic, it has been uncontested that in order to invade someone’s home, you need to have a warrant that was considered, and signed off on, by a judicial officer. This mandate is right within the Fourth Amendment; it is a core protection.
In addition to that, through jurisprudence that has evolved since the adoption of the Fourth Amendment, it is settled law that it applies to everyone. That would include noncitizens as well.
What I see in this directive that ICE put out, apparently quite some time ago and somewhat secretly, is something that, to my mind, turns the Fourth Amendment on its head.
Brendan Smialowski/AFP via Getty Images
What does the Fourth Amendment aim to protect someone from?
In the context of the ICE search, it means that a person’s home, as they say, really is their castle. Historically, it was meant to remedy something that was true in England, where the colonists came from, which was that the king or those empowered by the king could invade people’s homes at will. The Fourth Amendment was meant to establish a sort of zone of privacy for people, so that their papers, their property, their persons would be safe from intrusion without cause.
So it’s essentially a protection against abuse of the government’s power.
That’s precisely what it is.
Has the accepted interpretation of the Fourth Amendment changed over the centuries?
It hasn’t. But Fourth Amendment law has evolved because the framers, for example, didn’t envision that there would be cellphones. They couldn’t understand or anticipate that there would be things like cellphones and electronic surveillance. All those modalities have come into the sphere of Fourth Amendment protection. The law has evolved in a way that actually has made Fourth Amendment protections greater and more wide-ranging, simply because of technology and other developments such as the use of automobiles and other means of transportation. So there are greater protected zones of privacy than just a person’s home.
ICE says it only needs an administrative warrant, not a judicial warrant, to enter a home and arrest someone. Can you briefly describe the difference and what it means in this situation?
It’s absolutely central to the question here. In this context, an administrative warrant is nothing more than the folks at ICE headquarters writing something up and directing their agents to go arrest somebody. That’s all. It’s a piece of paper that says ‘We want you arrested because we said so.’ At bottom that’s what an administrative warrant is, and of course it hasn’t been approved by a judge.
This authorized use of administrative warrants to circumvent the Fourth Amendment flies in the face of their limited use prior to the ICE directive.
A judicially approved warrant, on the other hand, has by definition been reviewed by a judge. In this case, it would be either a U.S. magistrate judge or U.S. district judge. That means that it would have to be supported by probable cause to enter someone’s residence to arrest them.
So the key distinction is that there’s a neutral arbiter. In this case, a federal judge who evaluates whether or not there’s sufficient cause to – as is stated clearly in the Fourth Amendment – be empowered to enter someone’s home. An administrative warrant has no such protection. It is not much more than a piece of paper generated in a self-serving way by ICE, free of review to substantiate what is stated in it.
Have there been other kinds of situations, historically, where the government has successfully proposed working around the Fourth Amendment?
There are a few, such as consent searches and exigent circumstances where someone is in danger or evidence is about to be destroyed. But generally it’s really the opposite and cases point to greater protections. For example, in the 1960s the Supreme Court had to confront warrantless wiretapping; it was very difficult for judges in that age who were not tech-savvy to apply the Fourth Amendment to this technology, and they struggled to find a remedy when there was no actual intrusion into a structure. In the end, the court found that intrusion was not necessary and that people’s expectation of privacy included their phone conversations. This of course has been extended to various other means of technology including GPS tracking and cellphone use generally.
What’s the direction this could go in at this point?
What I fear here – and I think ICE probably knows this – is that more often than not, a person who may not have legal standing to be in the country, notwithstanding the fact that there was a Fourth Amendment violation by ICE, may ultimately be out of luck. You could say that the arrest was illegal, and you go back to square one, but at the same time you’ve apprehended the person. So I’m struggling to figure out how you remedy this.
John E. Jones III is President of Dickinson College.
Rick Hundley says
ICE has a job to protect US Citizens. Illegal/Undocumented Immigrants have all broken the law and by simple definition are criminals. I have travelled to 59 countries in my professional and personal life and in many of these countries the punishment for immigration violations would be swift and severe, and not just deportation. Open Borders is a thinly disguised movement to change voting demographics of the country.
Pierre Tristam says
So: you’re OK putting the United States on the same plane as, say, Pakistan? Uganda? Saudi Arabia? Maybe cut off migrants’ legs at the knee before sending them back to where they came from so they have a harder time wading across next time?
King yemma says
A more secure border would be good people should not just freely enter a country without consequences if they come here illegally then they should be deported no matter where they come from whether that be the middle east Africa or south America the only proper way is to gain citizenship
Sherry says
@ king. . . “Google” all that your lord and master trump is doing to “take away” LEGAL naturalization status from people law abiding, hard working who have been here for many years. Then get back to us. . . Geez!
Laurel says
Rick Hundley: According to your theory, that vast majority of Cuban Americans are criminals. As I recall, living in south Florida, all Cubans had to do was be able to make it to shore. Many jumped off home made boats, and literally swam to shore, making them eligible to become U.S. citizens. Trump, however, will not go after Cuban Americans…until…he no longer needs their vote. Yes, immigrants often vote in YOUR favor.
Do I fear Cuban Americans, since you claim we need to be protected from such people? No. My experience is that they have been exceptionally nice to me, especially the older generation, as they appreciate hard workers.
Speaking of hard workers, immigrants are hired by U.S. citizens, and build our homes, clean our businesses, and help provide the food on our tables. They pay taxes, and pay into our system that they will not retrieve from.
Why is this so hard to understand?
Rchie Santo says
First off, all people within the borders of our country are protected by the Bill of Rights. You may be disappointed that we can’t just lop of the heads of all these illegal aliens BUT the Constitution protects ALL.
Secondly, your comment regarding open borders is incorrect. Non-citizens of our country DO NOT have the right to vote. It seems that most trumpers believe if they just continue to repeat the same lies (eg. Trump won the 2020 election), that makes the lies true. Seems that you are just believing that there is such a thing (famously invented by Kelly Ann Conway) as “alternative facts”. Sorry, but there is just no alternative to the truth.
kennan says
RICK, you are one of the most painfully obvious reasons this country has declined into nothing more than a political bubble. Not a country. Certainly not a country with rights! Open borders huh? Your right! ICE IS A THINLY VEILED INTIMIDATION UNIT TO CHANGE VOTING DEMOGRAPHICS, BY SCARING EVERYONE FROM THE POLES! IT WON’T WORK.
Skibum says
Obviously you have so much admiration for those other countries and their wonderful, brutal treatment of immigration violators that I just have to wonder why in the world did you choose to come back???
Marek says
Just being in the US without documentation is a civil violation . Crossing the border without inspection is a misdemeanor. Those are not the crimes. ICE is supposed to track the violent criminals not arrest children, pregnant women and the citizens of the United States. But you cannot expect them or this administration to respect the Fourth Amendment. Or any articles of the Constitution for that matter.
Sherry says
@rick. . . This is not just about ILLEGAL immigrants! Your lord and master trump is doing his damnedest to “take away” LEGAL citizenship status from people born in other countries. . . especially people of color! This from TIME:
Referencing members of the Somali community, Trump confirmed this week that his Administration is looking into stripping some Americans of their naturalized state. “I would do it in a heartbeat if they were dishonest,” Trump told the New York Times in an interview conducted Wednesday night. “I think that many of the people that came in from Somalia, they hate our country.”
Although the Trump Administration is actively looking into the criteria for taking away citizenship, the President did not specify the exact foreign-born groups that would be targeted. Instead, he said: “If they deserve to be stripped, I would, yes.” Trump also did not specify what exactly would constitute one to “deserve” the denaturalization process and whether or not he was referring to the current legal parameters for denaturalization.
Eryn Hanlon, immigration lawyer and partner at Greenwood Hanlon Kendrick, says that certain legal evidence is required in order to pursue denaturalization. “The Trump Administration would have to prove that they [the citizens] were either committing fraud or lying during their naturalization process—perhaps through a fake marriage, or hiding a felony or a serious crime, or using a false name,” says Hanlon.
Laurel says
Trump stated “I think that many of the people that came in from Somalia, they hate our country.”
People are leaving their country, to come here, where they hate it.
Trump logic.
As Pogo says “Eat it up, that’s all there is.
So, they do so. Hopefully, more and more are spitting it out.
Judith G. Michaud says
Wow, are you not paying attention? ICE is taking legal and non-criminals because they can’t find enough criminals to make the Felon look good! This is so disgusting! This is not democracy we are watching; it is fascism ! What kind of American are you ? Sad !
PaulT says
Mr Hundley….. The last line of your comment “Open Borders is a thinly disguised movement to change voting demographics of the country” is a paranoid White Nationalist claim that has been as comprehensively disproved as Trump’s ‘2020 election was stolen’ lie.
Immigrants built this country and along with enslaved Africans made it prosper. Now, as always, immigrants do the low paid labor intensive jobs the descendents of earlier immigration surges will no longer touch. The current immigrants would have come in legally but the work visa and asylum programs were so restricted and backed up that it got to the point of being broken (and now Trump has all but cancelled them).
But that doesn’t suit his narrative so why let facts get in the way.
Trump and his loyalists claim ICE is just clearing out gangs, violent criminals and rapists to make our streets safer. But as usual their narrativeisn’t truthful. .
ICE has been going door to door in Minnesota and when no one answers are breaking in. Regardless of who lives there, citizen or non citizen, legal or not.
ICE are handcuffing and dragging off citizens who don’t prove their identity immediately. An elderly citizen of Chinese origin. A disabled citizen with a brown face dragged violently from her vehicle who ended up being treated in an emergency room after ICE brutality.
ICE are taking people who were (until Trump abruptly cancelled it) here legally on Temporary Protected Status programs.
ICE are taking legally admitted asylum seekers who are complying with court orders to await their day in court.
ICE has arrested petitioners for permenant residency at their final interviews. They entered then married legally but that didn’t help.
ICE has a quota set by Trump aide Stephen Miller.
Kristi Noem at DHS can’t meet it and she’s desperate. So she has instructed ICE to work faster, use more force, skirt more rules and arrest anyone who ‘appears to be an immigrant’. Racial profiling is alive and flourishing, fully authorized for ICE agents.
Meanwhile,
CBP are refusing legal entrants to the US on the basis of their social media history then detaining them for day/weeks in inhumane and overcrowded conditions before deporting them. Naturally enough many nations have issued advisory warnings to texellers who had planned to visit to the US and a lot of them are abandoning their plans. Why take the risk.
Why is Trump really doing this , does he want the US to be seen as inhospitable and unfriendly? It’s not for our security or prosperity, that’s for sure though neither is his trade policy or gunboat diplomacy.
It’s almost as if Trump wants the country to reflect his character as an unpredictable, rapacious bully. Is that what we want to be?.
Atwp says
The best way to protect American Citizens, arrest Trump.
Tony Mack says
Illegal entry into the United States is classified as a misdemeanor under 8 U.S.C. § 1325, which can result in a fine or imprisonment for up to six months for a first offense. However, living in the U.S. without legal authorization is considered a civil offense, not a crime.
Understanding Illegal Immigration as a Misdemeanor
Definition of Illegal Immigration
Illegal immigration refers to entering or residing in a country without legal permission. In the United States, this is primarily governed by 8 U.S.C. § 1325.
Legal Classification
Illegal Entry: This is classified as a misdemeanor. The first offense can result in:
A fine of up to $2,000
Imprisonment for up to six months, or both
Illegal Reentry: This is considered a felony, punishable by:
A fine
Imprisonment for up to two years
Context of Misdemeanor Status
While illegal entry is a misdemeanor, it is important to note that many violations of immigration law, such as overstaying a visa, are civil offenses. This means they do not carry criminal penalties but can lead to deportation and other immigration consequences.
Crime Rates Among Immigrants
Research indicates that illegal immigrants generally commit fewer crimes than native-born citizens. Studies show that areas with higher undocumented immigrant populations often experience lower crime rates.
This classification and context highlight the legal framework surrounding illegal immigration in the U.S. and its implications for those involved.
DaleL says
I wonder why no administration has thought to work with Mexico to stop Central and South American migration in southern Mexico. East of Tehuantepec, Mexico, between the Gulf of Mexico and the Pacific Ocean the distance is just 142 miles. Whereas the border between the USA and Mexico is 1,950 miles. It just seems like providing Mexico with a financial incentive (bribe if you will) to stop immigrants at this choke point would be more cost effective than building more of the border “wall”.
Anti-I.C.E. people frequently point out that the crime of illegal entry into the USA is subject is a civil penalty. However, this ignores the other issues with being in the USA illegally. It is a crime to work in the USA without a valid immigrant Work Authorization. Falsifying paperwork, to obtain a job, rent, buy a car, etc., is a common crime which may seem harmless, but can have serious consequences.
All this written, does not provide any justification for any government agency to willfully violate the US Constitution. The Fourth Amendment is clear. It is the right of the PEOPLE to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. This is not just a right of US citizens. This is the right of EVERYONE. There is also a real difference between a judicial warrant versus an administrative warrant. Judicial warrants typically deal with criminal law in which life and liberty are on the line. Administrative warrants typically deal with civil violation which could result in the seizure of property or closure of a business. To me it’s pretty clear that I.C.E. agents should need to get a judicial warrant to enter a home to arrest a person. There have been too many instances reported in the news of I.C.E. agents detaining US citizens. In one situation, a US citizen was forcibly removed from his home by I.C.E. agents in Minneapolis.
On top of this, there are now two well documented cases of I.C.E. agents unjustifiably killing US citizens. The first was agent Jonathan Ross who shot Renee Good in the head through her car’s open side window as she was attempting to drive away. The second was the killing of Alex Pretti. He was shot in the back, after being disarmed, by Jesus Ochoa and Customs and Border Protection officer Raymundo Gutierrez. Fortunately, Minnesota, as with all other states, does not have a statute of limitations for murder.
Pogo says
@Amnesia, American style
Nice to hear from the proud non-voters, everyone, a God in its mirror — and the rest of the spoilers who “saved” us from Genocide Joe.
Thanks for nothing.
Hmmm says
“Gotta catch em all”!!!
Its what the American citizens voted for.
Sherry says
@hummm. . . You know what, I’m an American citizens and “I” sure as hell did NOT vote for our constitution to be trampled on! “I” sure as hell didn’t vote for protesters to be “MURDERED”. . . with their murderers NOT being held accountable! “I” sure as hell did NOT vote for children to be thrown in prison camps! “I” sure as hell did NOT vote for anyone to have their car windows bashed in our the front doors to their homes broken down! “I” sure as hell did NOT vote for ICE/DHS to ignore hundreds of judges’ orders! “I” sure as hell did NOT vote for our cities to be “INVADED” by untrained masked goons, armed to the hilt accosting people on the street because of the color of their skin!
You know what “hummm”. . . neither did the MAJORITY of American citizens in recent polling!!!
Get educated beyond FOX BS and find your humanity!
PaulT says
Not this American Citizen.
Remember when Marco Rubio was laughed out of the Senate because he suggested that immigration should be ‘fixed’ so the foreign workers this country needs could come here legally to do the ‘dirty job’ no American will do? Such a pity he didn’t stick to his guns, though all you MAGA mob would have opposed that idea wouldn’t you.
And you are a minless mob aren’t you? A couple of years ago you were applauding and welcoming Cubans who’d fled what you’d been told was communist tyranny. But now you’re yelling ‘Send Them Home’. How fickle is that?
The jobs the Chinese did until the 1906 Immigration ‘freak out’.
The jobs the Irish did until the Italians started to pour in, which bumped the Irish up. The jobs the Mexicans on short term work permits took over before in the late ’40’s the government wanted them gone.
Every group of immigrants has been derided by it’s predecessors and has hated it’s successors, maybe it proves Darwin was right, though this is adaptation to environment in the worst possible form.
What is clear is that a lot of the descendants of those who were “‘your tired, your poor, – Your huddled masses yearning to breathe free” are disinclined to share the benefits their ancestors gleaned. This generation of descendants would have gleefully turn their ancestors away in a heartbeat, tell them to “go home, we don’t want you here.”
Shame On You.
Ray W says
I don’t remember how long ago I researched the concept of “general warrants”, but whenever it was, I found and read a lengthy article by a law school professor about a court case presented by James Otis, Jr., in March 1761.
A young Massachusetts lawyer named John Adams witnessed Otis’ 5-hour argument against general warrants, also called “Writs of Assistance.”
British customs agents had been carrying around blank documents signed by customs magistrates, not British judges, that could be filled in after signing at whim and caprice by customs agents. The only restriction on these general or blank warrants was that entry into homes and businesses had to occur during daylight hours, as I recall.
Several Boston businessmen had hired Mr. Otis to press their claim that the colonists had the same British constitutional rights enjoyed by British businessmen. Their businesses had been entered on the authority of blank pieces of paper, with no specifics presented to a British judge beforehand, hence the name “general” warrants.
The reason driving my comment is the ICE magistrate warrants are being used by agents to batter down doors in search of deportable immigrants without the existence of an official order of deportation for a specific person.
Under our state and federal constitutions, only judicial branch judges, and not executive branch hearing magistrates, can issue warrants based on allegations of specificity sufficient to establish probable cause, in order to enter homes or businesses.
Congress, however, long ago authorized administrative hearing officers the power to issue executive warrants, but only if an official order of deportation for a specific person already exists.
Recently, based on an agency executive order that had until recently not been revealed, our current administration has decided to expand its executive power by authorizing agents to enter homes without the existence of a prior official specific order of deportation.
Who knows how this effort to expand executive power will end up?
Years after he had watched the argument against customs hearing officers issuing general warrants in violation of British oral constitutional rights, John Adams, our second president, would write of that 1761 day:
“Then and there the child Independence was born.”
Make of this what you will.