Judge Holds that ICE Workplace Warrants Must Comply with the Fourth Amendment

Given the Trump administration's continued emphasis on immigration enforcement, it is critical that employers understand their rights during an Immigration and Customs Enforcement (ICE) enforcement action. In a recent opinion, United States Magistrate Judge Andrew Edison in the Southern District of Texas provides an important limitation on ICE's worksite enforcement powers, as it requires government agents to obtain a judicial warrant to search a business's private areas for suspected undocumented immigrants. For a more detailed discussion about federal immigration policy’s implications for employers, see our prior client alert.

A Recent Check on ICE's Enforcement Powers

On May 27, 2025, Magistrate Judge Andrew Edison of the US District Court in the Southern District of Texas, Galveston Division denied the government's application for an administrative inspection warrant.¹ The government sought this administrative inspection warrant to investigate a local business suspected of employing undocumented immigrants without work authorization.² The government’s application characterized the search as "civil." It sought a non-particularized general administrative warrant that would have allowed US ICE agents to search "any locked rooms on the premises in order to locate aliens."³ However, the court concluded that because the search was insufficiently tailored and inherently criminal, given the potential penalties the business owners faced, a particularized, criminal warrant supported by probable cause was required.⁴

Rather than ask Judge Edison to reconsider, the government submitted a nearly identical warrant application to US District Judge Jeffrey Brown.⁵ The case was again brought before Judge Edison, who rejected it a second time.

A brief history of administrative "Blackie's" warrants

The Fourth Amendment guarantees that "no Warrants shall issue, but upon probable cause," and Federal Rule of Criminal Procedure 41(d)(1) requires "probable cause to search for and seize a person." But, the US Supreme Court's decision in Marshall v. Barlow's, Inc. created an exception for administrative search warrants by federal regulatory agencies like those carried out under the Occupational Safety and Health Act (OSHA). These administrative warrants are permitted where no criminal penalties can result.⁶ In the 1980s, three appellate courts arguably extended Marshall to ICE warrants, which are commonly referred to as "Blackie's warrants, after the DC Circuits 1981 decision in Blackie's House of Beef, Inc. v. Castillo."⁷ In Blackie's, the DC Circuit reasoned that the government's warrant application "was not analogous to a criminal investigation" because no criminal sanctions could be imposed on employers for violating the immigration laws.⁸ Furthermore, no seizure took place where ICE agents questioned individuals outside of the factory near exits⁹, and thus, probable cause was not required to sustain an investigatory warrant.¹⁰

Judge Edison distinguishes the warrant at issue from Blackie's warrants.

Judge Edison explained that the realities of immigration enforcement in the 1980s, when Blackie's warrants were promulgated, "are simply not true now,"¹¹ noting that cases extending Marshall to Blackie's were decided when "no sanctions of any kind, criminal or otherwise," were at issue and statutes "exempted American Businesses that employ undocumented aliens from criminal sanctions."¹² Because that is not today's legal landscape, Judge Edison found those cases unpersuasive.

Judge Edison concluded: "People are not documents or safety hazards. If the government wants to search for a person—including an alien—it must get a Rule 41 warrant."

"The law has never permitted" a general search warrant "anywhere" and for "anyone."

Judge Edison further criticized the government's application because it was too general.  It sought a warrant to search for anyone, anywhere, including in locked areas of the business, despite naming individuals it suspected were working there without proper authorization.¹³ Judge Edison likened this to the "reviled" general warrants and writs of assistance used during the British colonial era.¹⁴ This "exploratory rummaging," he explained, is precisely what the Fourth Amendment prevents.¹⁵

Best Practices for Business Owners

Contributions by Dwight J. Draughon, Jr., Patrick F. Linehan, Alex Wolf, Brittney Denley

While Judge Edison's opinion is not binding on other federal courts, it provides a well-reasoned basis for requiring ICE to obtain a Rule 41 warrant to search a business's private areas. Given the increase in immigration enforcement, employers should consult with legal counsel to ensure that their company's policies and protocols clearly outline their rights and obligations when interacting with ICE. Employers should have a plan in place for dealing with ICE agents in the event of a visit and train relevant employees on what to do in such situations. Here are a few general guidelines.

Despite Judge Edison's recent opinion, ICE agents may still present a "Blackie's warrant" or a Rule 41 warrant. To be valid, either warrant must be issued by a federal court, signed by a federal judge, and specify the time, location, and targets of the search or seizure. The warrant should be accompanied by an affidavit that sets forth a plausible basis for believing that there are deportable noncitizens present at a location. However, it does not need to name or describe the individuals sought.

A designated representative of your business may ask ICE agents to show their identities, credentials, and a judicial warrant for any search and seizure in a non-public space. Your company should also provide the name of in-house or outside counsel to be contacted in the event of an enforcement action.

If ICE agents present a judicial warrant, you may have a designated official review and copy the warrant and accompany the agents to ensure that their execution of the warrant aligns with its terms. You and your designated officials should not interfere with their attempts to access non-public areas, even when only acting under a Blackie's warrant.

If ICE agents do not have a judicial warrant, you are not required to consent to their entry into any non-public space unless there are exigent circumstances. 

If ICE agents assert that there are exigent circumstances justifying a warrantless search, such as an urgent national security or public safety threat, you should not interfere with their attempts to access non-public areas.

You are not required to provide ICE agents with any information about whether any named individuals are present on your business’s premises.

Following any interactions with ICE, it is important to document all relevant details in writing, including:

• Date, time, location, and personnel present/involved
• Name, badge number, and contact information of ICE agent(s)
• Copies of information provided by ICE (e.g., warrants or legal documents)
• Description of any information provided to ICE

Steptoe will be closely monitoring these developments and providing ongoing updates. We are available to help with your business's risk assessment and to provide compliance advice as you navigate this complex and rapidly changing landscape. For relevant updates, please refer to Steptoe's Client Alerts.

¹In re Sealed Search Warrant Application, Civ. Action No. 3:25-mc-05067 (S.D. Tex. May 27, 2025).

² Id. at 1.

³ Id. at 1-2.

⁴ Id. at 2.

⁵ Op. and Order, Civ. Action No. 3:25-mc-00015, at 1 (S.D. Tex. June 9, 2025).

⁶ In re Sealed Search Warrant Application, Civ. Action No. 3:25-mc-05067, at 3 (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 325 & n.23 (1978)).

⁷ Id. at 3-4 (citing Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211 (DC Cir. 1981)),

⁸ Id. at 4 (quoting Blackie's, 659 F.2d at 1218) (cleaned up).

⁹ Id.

¹⁰ Id.

¹¹ Id.

¹² Id. (citing I.N.S. v. Delgado, 466 U.S. 210, 240 (1984) (Brennan, J., concurring in part and dissenting in part); Blackie's, 659 F.2d at 1218).

¹³ Id.

¹⁴ Id. at 8.

¹⁵ Id.