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 January 21, 2026, said an internal ICE memo – obtained through a whistleblower – may state that the judge may declares the judge. That policy, the report said, constituted “a drastic reversal of longstanding guidance intended to respect constitutional limits on government searches.”
Those limits have long been found in the Fourth Amendment of the United States Constitution. Politics editor Naomi Schalit interviewed Dickinson College President John E. Jones III, a former federal judge appointed by President George W. Bush and unanimously confirmed by the United States Senate in 2002, for a primer on the Fourth Amendment, and what the changes in the ICE memo mean.
Well, I’ll read the Fourth Amendment – and then you’ll explain it to us, please! Here goes:
“The right of the people to be safe in their persons, houses, papers, and their effects, against unreasonable searches and seizures, shall not be infringed, and no Warrant shall issue, but for probable cause, supported by Oath or affirmation, and in particular 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 not been disputed that to invade someone’s home, you need to have a warrant that has been considered, and signed, by a judicial officer. This mandate is precisely in the Fourth Amendment; it is core protection.
Furthermore, through jurisprudence that has evolved since the adoption of the Fourth Amendment, it is established law that applies to everyone. This would also include non-citizens.
What I see in this directive that ICE issued, apparently quite some time ago and somewhat secretly, is something that, in my mind, turns the Fourth Amendment on its head.
What does the Fourth Amendment aim to protect someone from?
In the context of the ICE search, this means that a person’s home, as they say, is truly their castle. Historically, it was intended 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 as they wanted. The Fourth Amendment was intended to establish a sort of zone of privacy for the people, so that their papers, their property, their persons would be safe from unreasonable intrusion.
So it is essentially a protection against the abuse of government power.
This is precisely what it is.
Has the accepted interpretation of the Fourth Amendment changed over the centuries?
He didn’t. But the law of the Fourth Amendment evolved because the framers, for example, did not think there would be cellphones. They could not understand or anticipate that there would be things like cell phones and electronic surveillance. All of those modalities came within the realm of Fourth Amendment protection. The law has evolved in a way that has actually made the protections of the Fourth Amendment greater and broader, simply because of technology and other developments such as the use of automobiles and other means of transportation. So there are larger protected areas 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 is absolutely central to the question here. In this context, an administrative warrant is nothing more than people at ICE headquarters writing something and directing their agents to go and arrest someone. That’s all. It’s a piece of paper that says ‘We want you arrested because we said so.’ Basically that’s an administrative warrant, and of course it wasn’t approved by a judge.
This authorized use of administrative warrants to avoid Fourth Amendment flies in the face of their limited use prior to the ICE directive.
A judicially approved warrant, on the other hand, by definition has been reviewed by a judge. In this case, it would be either a United States magistrate judge or a United States district judge. This means that it must be supported by probable cause to enter someone’s residence in order to be arrested.
So the main distinction is that there is a neutral arbitrator. In this case, a federal judge who evaluates whether or not there is sufficient cause to – as clearly stated in the Fourth Amendment – be given the power to enter someone’s home. An administrative mandate has no such protection. It is not much more than a self-serving piece of paper generated 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 to work 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 is really the opposite and the cases indicate greater protection. For example, in the sixties 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 the intrusion was unnecessary and that people’s expectation of privacy included their telephone conversations. This of course has been extended to various other means of technology including GPS tracking and cell phone use in general.
What is the direction 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, despite the fact that there was a Fourth Amendment violation by ICE, may ultimately be out of luck. You can say that the arrest was illegal, and go back to the beginning, but at the same time he caught the person. So I’m struggling to figure out how to remedy this.
This article is republished from The Conversation, an independent not-for-profit news organization that brings you reliable facts and analysis to help you make sense of our complex world. It was written by: John E. Jones III, Dickinson College
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John E. Jones III is affiliated with the Keep Our Republic Article Three Coalition.