Your Home is Your Castle. Does the Federal Government Know That?
In an internal memo, U.S. Immigration and Customs Enforcement completely upends the warrant requirement under the Fourth Amendment.
Welcome to New Jersey Insight, a periodic newsletter to make law and politics (through a New Jersey lens) more accessible.
When I served as a state trial court judge in New Jersey,1 I periodically had emergency duty. For about a week at a time, I would be on call during the overnight hours to address any emergent matters that could not wait for the next business day. This often involved applications for search warrants.
For me, a request to approve a search warrant followed a typical pattern. First, I would inevitably receive a call after midnight. The initial call would usually come from the on-duty county sheriff and start with a quick apology for waking me up. The sheriff would then advise me that an assistant prosecutor would contact me soon with a request to approve a search warrant. Police officers are already on standby, I’m told, outside of the suspect’s home ready to execute the warrant once I approve. And because these occur in the overnight hours, time is of the essence. A suspect is wanted in a homicide, for example, or involved in narcotics, and the circumstances justify an immediate search of the home for evidence of the crime.
Despite the hour, I would wake up quickly and get to work. Law enforcement would prepare for me an affidavit of probable cause in support of the warrant request. Thoroughly drafted, it detailed the actions and discoveries of law enforcement, minute-by-minute, that led them to the home in question. The affidavit would usually include maps and pictures to accurately identify the home that they wish to search. On my end, I would evaluate the papers carefully to ensure that they establish what the Fourth Amendment to the U.S. Constitution requires: “probable cause, supported by Oath or affirmation... particularly describing the place to be searched, and the persons or things to be seized.”
Not an incredibly high standard, but a demanding one. Regardless of the allegations of criminality, this is still someone’s home. If the government wants to enter it without consent in the middle of the night, it better get it right. I always appreciated the prosecutors and law enforcement who would prepare these applications for me with the care and meticulousness that they deserve given the gravity of the action that they wish to undertake.
Once I concluded that the papers met the standard, I would electronically sign the warrant and then attempt to return to sleep...though usually to no avail. My thoughts would still be on that search request, envisioning how the folks in that home would be reacting once they hear the knock from law enforcement and wondering whether the search proceeded safely for both the occupants and law enforcement.
Fast forward to a week and a half ago, the Associated Press reported on an astounding internal memo from U.S. Immigration and Customs Enforcement (ICE). Issued in May 2025 by the Acting ICE Director, the memo relayed advice from the general counsel’s office in the U.S. Department of Homeland Security (DHS), which summarily dispensed with the constitutional rule that a judicial warrant is required before the government can enter someone’s home without consent. Instead, according to the memo, ICE can simply rely on an administrative warrant (i.e., a document that ICE issues for itself) to enter a home to effectuate an arrest of an individual subject to an order of removal (i.e., a document that can be issued by the executive branch itself).
No need for a detached and impartial arbiter, according to ICE, to evaluate and determine whether probable cause exists to enter the home, let alone whether the subject in question is even present at the time that ICE wishes to enter the home. No need for thorough affidavits, on oath or affirmation, that describe “with particularity” the place to be searched. As long as ICE determines for itself that “a reason” exists that it believes “that the subject alien resides at and is currently located in the address,” the government can enter someone’s home. The Fourth Amendment barely receives a mention in the memo, except in a footnote to acknowledge a contrary court decision in the Central District of California.
Since this reporting, plenty of commentators ripped apart the absurd conclusion in this somewhat secretive ICE memo. It is simply “wrong as a legal matter — and it threatens one of the most basic freedoms Americans have: the right to be safe in their own homes.” Final orders of removal are “not arrest warrants,” and for those arguing that the Fourth Amendment does not protect noncitizens without lawful immigration status, such a claim “is also bunk.” The plain text of the Fourth Amendment speaks to the “right of the people” and “persons” to be seized, and the protection - in my view - does not turn on how the executive branch views an individual’s immigration status. Rather, the Fourth Amendment limits the actions of the government before it can intrude on anyone’s privacy.
The shocking reverberations of recent ICE actions, whether it be the revelation of this memo, the killings of Renee Good and Alex Pretti, or the continued allegations of misconduct by federal personnel in Minneapolis, are reaching a crescendo for the federal judiciary. In an order, Chief Judge Patrick Schiltz of the U.S. District Court in Minnesota shared his outright frustration with ICE. In response to a request from a habeas litigant to enforce a prior court order setting a bond hearing, Judge Schiltz declared that the court’s “patience is at an end” and ordered the Acting ICE Director to appear in court unless the litigant was released from custody. Two days later, the parties acknowledged that ICE released the litigant. Judge Schiltz, as promised, no longer required the Acting ICE Director to appear in court. But as he did so, Judge Schiltz drew our attention to “96 court orders that ICE has violated in 74 cases” since January 1, 2026, a count that is likely understated.
Judge Schiltz cautions us that such frequent violations of court orders “should give pause to anyone — no matter his or her political beliefs—who cares about the rule of law.” And in an extraordinary statement, the judge declares that “ICE has likely violated more court orders in January 2026 than some federal agencies have violated in their entire existence.” The agency “is not a law unto itself.”
I’ll let that sit. Lastly, I’ll conclude today with another federal court order, this time involving a father and a five-year old detained by ICE in Minnesota and quickly transported to Texas. Judge Fred Biery of the U.S. District Court for the Western District of Texas ordered their release. But in doing so, Judge Biery issued a pithy, three-page opinion that, honestly, deserves a read by everyone. It draws on the genesis of this nation and the animating concerns of the Declaration of Independence. At bottom, it pulls on the morality of each and every one of us.
Please stay safe and engaged.
The trial courts in New Jersey are called the Superior Court. Under the state constitution, judges on the Superior Court are nominated by the governor and confirmed by the state senate. Governor Phil Murphy nominated me for the role, for which I will always be grateful, and the state senate unanimously confirmed my nomination.