The Fourth Amendment and decades of case law make clear that law enforcement may not enter a residence for search or arrest without a warrant based on a statement of probable cause and signed by a neutral magistrate. Exceptions exist—exigent circumstances, hot pursuit, searches incident to arrest, plain view, consent—but the home remains the locus of the highest privacy protections. Courts apply a reasonableness balancing test, weighing the intrusion against government need; in that calculus, an individual’s person and home enjoy the most rigorous protection.
Warrants serve two essential functions: they protect individual rights and shift the initial burden of proving the lawfulness of a search to the government. Once signed and served, the burden shifts to the defense to prove the search is illegal.
When officers violate the Fourth Amendment, courts may apply the exclusionary rule, suppressing illegally obtained evidence that can end a prosecution. The principle is currently playing out in New York in the case of Luigi Mangione, where defense counsel argues that officers exceeded lawful bounds during a search incident to arrest and violated Miranda protections.
The current controversy centers on administrative warrants—executive-branch authorizations used for noncriminal regulatory inspections, like building-code or environmental enforcement—and whether those warrants suffice for entering homes to arrest individuals subject to deportation. Administrative warrants arise from civil or regulatory frameworks where violations typically do not carry prison sentences. But immigration enforcement sits at the intersection of civil and criminal law, and the potential for administrative processes to become a pretext for criminal investigation is real. When criminality is implicated, Fourth Amendment protections must be respected.
Recently, DHS issued internal guidance to ICE asserting that administrative warrants are sufficient to enter dwellings to make arrests on outstanding deportation orders. Percival argued that “illegal aliens…don’t have the same rights as citizens,” and that an administrative warrant permits a probable-cause finding by an executive officer rather than a judicial one. That statement is misleading at best: it conflates citizenship with constitutional protection. Noncitizens—whether lawful or not—remain entitled to many constitutional safeguards, including search-and-seizure protections, when on U.S. soil.
Percival invokes Abel v. United States (1960), which many readers may recall from the movie Bridge of Spies, to justify administrative-authority arrests, and recounts that ICE previously sat outside homes waiting for fugitives to step outdoors, only to be taunted through windows or notes under doors. He contends that no serious country would tolerate such “aberrations” that allegedly mock law enforcement.
That argument misunderstands the constitutional trade-offs. The rules that constrain policing are not bureaucratic quibbles; they are deliberate safeguards that protect liberty. Criminal investigations within our constitutional framework are painstaking precisely because they must guard against government overreach and error. Yes, officers are sometimes thwarted by suspects who exploit procedural protections. That frustration is the cost of living in a democracy, not evidence that constitutional limits are superfluous.
If the government seeks broader authority to enter homes on immigration matters, that expansion should come through clear legislative authorization and careful judicial reviews subject to the checks that have long upheld the Fourth Amendment’s core protections—not through administrative fiat.
Ironically, obtaining criminal arrest warrants for the criminal offenders ICE purports to be prioritizing would not be difficult for any experienced law enforcement officer.
Policing in a police state is easy; policing in a democracy is hard—and it should be.
Steve Smith is a senior fellow in urban studies at the Pacific Research Institute, focusing on California’s ongoing crime challenges.
