A close look at the Eighth Circuit case behind the DHS position.

Orin S. Kerr | 1.23.2026 6:21 PM

[UPDATE: I have changed the post below, as it was pointed out to me that the key opinion in Lucas was only a plurality opinion, not a majority opinion. I regret that I had not spotted that earlier.  This is a revised post.]

This is a follow-up to my recent post, Can ICE Enter a Home To Make an Arrest With Only an Administrative Warrant?, on the Trump Administration's view that they can use I-205 warrants from the executive branch to enter homes to make immigration arrests.  As you'll recall from that post, I was speculating about what the government's theory might be. In the last day, various administration and administration-friendly sources have suggested that they're relying on a 2007 plurality opinion from the en banc Eighth Circuit, United States v. Lucas, 499 F. 3d 769 (8th Cir. 2007), for that view.

I thought I would take a look at Lucas and see if it provides the support the Administration claims.

My overall take: The administration has an argument, although I don't think it's a good one.  Put another way, they have a plausible argument by analogy to the plurality opinion of some judges in Lucas, but it has problems.  What to make of that depends on the question you're asking. If the issue is whether the Administration has a non-frivolous argument, I think they do.  If the issue is whether the Administration has an argument that should win, I don't think they do.

Lucas involved an escapee from prison, one Tylan Lucas.  Under state law, the prison system director could issue an executive-branch executive warrant to arrest Lucas—what state law called a "Warrant of Arrest (for Escaped Prisoner)"—and he did.  The police then received a tip that Lucas was present at a particular apartment in Omaha.  Police went to the apartment, and the resident, Theresa Scaife, was there and answered the door.  The police ultimately entered and also found Lucas, together with Lucas's drugs.  Lucas was charged with drug crimes, and he moved to suppress the drugs found in the apartment. Lucas argued that entering the apartment without a valid judicial warrant violated his Fourth Amendment rights.

Of the thirteen judges on the Eighth Circuit,  ten took a position on the use of administrative warrants.  They split five to five.  Five judges joined a plurality opinion saying that the Fourth Amendment was not violated in part because of the administrative warrant:

Because Lucas's reasonable expectation of privacy was limited by his status as an escapee and the officers possessed both a valid administrative warrant and reasonable cause to believe Lucas was in Scaife's apartment, we conclude that his Fourth Amendment rights were not violated by the entry of the officers into the apartment and his subsequent arrest.

Three more judges agreed that there was no violation, but they did not reach the issue of whether the administrative warrant was valid.

Five judges said that the use of the administrative warrant was invalid.

I take it the administration is relying on the five-judge plurality opinion in Lucas, so let's take a look at that. It is tricky to decipher because the court seems to be relying on three different lines of cases, all of which factor into the overall reasonableness of the entry under a totality of the circumstances balancing of interests.

First, relying on Abel v. United States—the 1960 case I wrote about in my earlier post—Lucas argues that administrative warrants are generally valid to make arrests and in some cases even to enter homes:

The fact that Clarke was not a neutral judicial officer does not end the Fourth Amendment inquiry, however. This case is quite different from the cases on which Lucas relies in which a neutral magistrate was needed to determine probable cause. Here the administrative official responsible for the custody of prisoners issued a warrant to retake an inmate who had already been convicted of a crime beyond a reasonable doubt and had fled from his lawful custody. The standard for issuance of a valid administrative warrant under the Fourth Amendment is different from the probable cause showing necessary for a warrant to arrest someone suspected of a crime.

The Supreme Court has upheld administrative warrants and has never held that administrative warrants must be issued by a neutral and detached magistrate in the sense of Shadwick or Coolidge. An administrative arrest warrant issued by a district director of the Immigration and Naturalization Service pursuant to a deportation statute led to a valid arrest in Abel v. United States, 362 U.S. 217, 234, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). There, the Court recognized the "long-sanctioned practice" and "overwhelming … legislative recognition" favoring "the propriety of administrative arrest" in such circumstances. Id. at 230, 233, 80 S.Ct. 683. The Court has required that administrative warrants be obtained before inspectors enforcing housing code compliance may lawfully enter and inspect residential units. See Camara v. Mun. Court, 387 U.S. 523, 87........

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