'The Fourth Amendment Literally Exists to Prevent This': Memo Claims ICE Can Forcibly Enter Homes Without Judicial Warrants

"The United States government is looking for ways around that pesky Fourth Amendment," an investigative journalist said of Wednesday reporting by the Associated Press on an internal US Immigration and Customs Enforcement memo claiming that ICE agents can forcibly enter a private residence without a judicial warrant, consent, or an emergency.

The Fourth Amendment to the US Constitution states, "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."

ICE's May 12 memo, part of a whistleblower disclosure obtained by the AP, says that "although the US Department of Homeland Security (DHS) has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of the General Counsel has recently determined that the US Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose."

The January 7 disclosure was sent to the US Senate by the group Whistleblower Aid, which is "keeping the whistleblowers' identities anonymous even from oversight investigators," according to the document. It notes that despite being addressed to "All ICE Personnel," the seemingly unconstitutional memo "has not been formally distributed to all personnel."

Instead, it "has been provided to select DHS officials who are then directed to verbally brief the new policy for action. Those supervisors then show the memo to some employees, like our clients, and direct them to read the memo and return it to the supervisor," the disclosure details. "Newly hired ICE agents—many of whom do not have a law enforcement background—are now being directed to rely solely on" an administrative warrant drafted and signed by an ICE official to enter homes and make arrests.

Asked about the May 12 memo, signed by acting ICE Director Todd Lyons, Homeland Security spokesperson Tricia McLaughlin told the AP that everyone DHS serves with an administrative warrant has already had "full due process and a final order of removal," and the US Supreme Court and Congress have "recognized the propriety of administrative warrants in cases of immigration enforcement."

However, as Whistleblower Aid senior vice president and special counsel David Kligerman stressed in a Wednesday statement, "no court has ever found that ICE agents have such legal authority to enter homes without a judicial warrant."

"This administration's secretive policy advocates conduct that the Supreme Court has described as 'the chief evil against which the wording of the Fourth Amendment is directed'—that is the warrantless physical entry of a home," he noted. "This is precisely what the Fourth Amendment was created to prevent."

"If ICE believes that this policy is consistent with the law, why not publicize it?" he asked. "Perhaps they've hidden it precisely because it cannot withstand legal scrutiny. Policies which impact fundamental constitutional rights, particularly one which the Supreme Court has called the greatest of equals among the Bill of Rights, should be discussed openly with the American people. It cannot be undone by hidden policy memos."

Other lawyers, journalists, and critics responded similarly to the AP's reporting on social media. Alejandra Caraballo of the Harvard Law Cyberlaw Clinic declared that "the Fourth Amendment literally exists to prevent this."

Bradley P. Moss, an attorney specializing in litigation related to national security, federal employment, and security clearance law, said, "Remember when the Fourth Amendment was still a thing?"

American Immigration Council senior fellow Aaron Reichlin-Melnick wrote: "It has been accepted for generations that the only thing which can authorize agents to break into your home is a warrant signed by a judge. No wonder ICE hid this memo!"

"This is the Trump administration trashing the Fourth Amendment to the Constitution in pursuit of its mass deportation agenda," he continued, highlighting a footnote that suggests "they won't even rule out authorizing home invasions with no judicial warrant for people not even ordered removed!"

"In short, this secret memo explains SO MUCH of what we've been seeing over the last months, including this raid of a home in Minneapolis where ICE officers presented no judicial warrant before breaking in the door," he said. "Turns out they were secretly told they don't need one!"

While Reichlin-Melnick shared photos of a scene in which armed immigration agents used a battering ram to enter a Minneapolis home and arrest a Liberian man, federal agents also recently broke down the door of a residence in neighboring Saint Paul, Minnesota, and arrested ChongLy "Scott" Thao, a US citizen who was later freed.

The AP reporting and responses to the leaked memo came as the Trump administration on Wednesday surged immigration agents to Maine for what it dubbed "Operation Catch of the Day," mirroring the federal deployment to not only Minnesota—where ICE officer Jonathan Ross fatally shot Renee Good, a US citizen, in her vehicle earlier this month—but also Illinois and California.

US Sen. Richard Blumenthal (D-Conn.), ranking member of the Permanent Subcommittee on Investigations, opened an inquiry into reports of unconstitutional detentions of US citizens by immigration agents in October and on Wednesday demanded answers about the new whistleblower disclosure.

Blumenthal sent lists of questions and requests for records to Lyons and US Homeland Security Secretary Kristi Noem as well as Benjamin C. Huffman, director of the Federal Law Enforcement Training Centers. The senator also wrote to Senate Committee on Homeland Security and Governmental Affairs Chair Rand Paul (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa), urging them to call the ICE and DHS leaders to testify before their panels.

"Every American should be terrified by this secret ICE policy authorizing its agents to kick down your door and storm into your home," Blumenthal said in a statement. "It is a legally and morally abhorrent policy that exemplifies the kinds of dangerous, disgraceful abuses America is seeing in real time."

"In our democracy, with vanishingly rare exceptions, the government is barred from breaking into your home without a judge giving a green light," he continued. "Government agents have no right to ransack your bedroom or terrorize your kids on a whim or personal desire. I am deeply grateful to brave whistleblowers who have come forward and put the rights of their fellow Americans first."

"My Republican colleagues who claim to value personal rights against government overreach now have an opportunity and obligation to prove that rhetoric is real," the senator added. "They must hold hearings and join me in demanding the Trump administration answer for this lawless policy."