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ImmigrationProf Blog
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The Fourth Amendment: A Shield Cast Aside

By immigrationprof

Gust blogger: Dustin Ercolano, law student, University of San Francisco

Imagine the following: several armed law-enforcement officers storm into a house in the dead of night or early hours of the morning—no warrant, no invitation, no explanation beyond commands and interrogation. Each occupant of that house is jarred awake, escorted out of bed, lined up in the living room and ordered to produce documents and answers to questions. Those unfortunate enough to fail to satisfy the officers’ demands are immediately arrested and hauled into custody. For any rational person, such a traumatic experience would be seen as an unforgivable government intrusion. Indeed, the Founding Fathers, having suffered under the Townshend Acts of 1767, enacted the Fourth Amendment in 1791 to prohibit unreasonable searches and seizures. Thanks to the protections provided by the Fourth Amendment, most individuals residing within the United States are guaranteed security “in their persons, houses, papers, and effects;” however, the unfortunate reality is that, according to the Immigration Defense Project, hundreds of families and counting have been detained as a result of warrantless home raids. While the United States Immigration and Customs Enforcement (“ICE”) acknowledges that warrantless raids and searches are technically unconstitutional, there is nonetheless an increasing trend in the number of detentions made through warrantless home raids. In addition to the hundreds of unconstitutional home raids that occur, there are thousands of unreasonable searches and seizures that are inflicted upon unsuspecting residents of the United States by ICE agents.

So what is the remedy for the multitude of residents whose right to freedom from unreasonable government intrusion is infringed upon? In many cases nothing. In a 1984 case that went to the Supreme Court of the United States (“SCOTUS”), the Court held that the “Exclusionary Rule” does not apply in Immigration Courts. This 5-4 decision removed the “teeth” that the Fourth Amendment had in the context of the deportation hearings. To understand the impact that INS v. Lopez-Mendoza had on Fourth Amendment protections extended to those suspected of being deportable immigrants consider the following: The Fourth Amendment, like all laws, regulations, and constitutional provisions, imposes a duty on an actor (the government) to act properly/refrain from acting improperly (refrain from conducting unreasonable searches and seizures). However, the simple existence of a law or constitutional provision does not ensure it will be adhered to; this is why each regulation needs to have “teeth”—a consequence for unlawful conduct. Traditionally, when the evidence is obtained in violation of the Fourth Amendment, SCOTUS ruled that such evidence should be excluded from a criminal trial. The policy being that excluding evidence will act as an appropriate deterrent to law enforcement, whose interest is in building a case against a defendant. When this “Exclusionary Rule” is applied to the nightmarish home raid described above, a presiding judge would likely find the search of the home and seizure of its occupants to be unreasonable and would, therefore, require the exclusion of any and all evidence obtained pursuant to that unlawful search and seizure—the outcome of which would likely result in a complete dismissal of the entire case. Following SCOTUS’s decision in INS v. Lopez-Mendoza, no such relief will be granted to the subject of an unconstitutional search or seizure unless the individual can prove that the violation of the Fourth Amendment was egregious or systematic.

What is nonsensical about SCOTUS’s refusal to apply the exclusionary rule in Immigration Hearings for all evidence obtained through unlawful search and seizure is that ICE now has no incentive to respect their target’s constitutional rights. ICE’s mission is not to serve the community by protecting its inhabitants constitutional interests, but rather to round up as many immigrants as possible and deport them. According to acting ICE Director, Thomas Homan, in a 2017 hearing in front of Congress, “[Immigrants] should be worried. [Immigrants] should look over [their] shoulder.” This paints a gruesome picture of one of the highest funded government law enforcement agencies hunting for individuals they have identified as undocumented immigrants with no working protection to shield them.

SCOTUS reasoned incorrectly that ICE has internal policies that should act as sufficient deterrent against unconstitutional raids. This is fundamentally opposed to all reason. Firstly, ICE has demonstrated its commitment to prioritize detaining as many people as possible when it enacted and increased a policy that required a minimum number of beds to be filled at detention centers each day. So it is illogical to assume that ICE management will do anything that would get in the agents’ way of making their mass arrests every day. Secondly, in light of the recent Black Lives Matter protests, it is clear that law enforcement officers are more likely to band together to deny and cover up officer misconduct than to hold each other accountable. Lastly, if the Court truly believed that ICE is sufficiently willing and capable of preventing unconstitutional raids then what is the harm in imposing the Exclusionary Rule just in case?

In summation, by refusing to enforce the Exclusionary Rule in deportation hearings, SCOTUS struck away the only shield that the already marginalized immigrant demographic could cling to in the face of threats of the unreasonable, unprecedented, and unthinkable ICE raids.

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