Immigration enforcement operations in the common interest development context can give rise to certain liability issues of which community associations should be aware. Situations may arise where community associations and association managers would need to grapple with questions about the rights and obligations of all involved when it comes to requests by ICE for homeowners’ documents or information, and requests or demands by ICE to enter and search non-public areas belonging to an association.

As a starting point, it should be noted that there is no general legal obligation in the United States to provide information to law enforcement officers. The Fourth Amendment protects the people from unreasonable searches and seizures, and requires government agents to secure judicial permission, in the form of a warrant, before conducting searches and seizures. Initially, it is important to distinguish between the two types of warrants that may be presented in this context. ICE is empowered to issue its own “administrative” arrest warrants for individuals facing deportation. Administrative warrants, however, do not authorize agents to enter onto and search private property. On the other hand, a search warrant, signed by a judge, does authorize agents to enter and search private property and to seize the types of evidence described in the warrant. In any event, because the Fourth Amendment only protects against unreasonable searches and seizures, the United States Supreme Court has recognized several exceptions to the warrant requirement. For present purposes, only three of those exceptions have any relevance: (1) the exigent circumstances doctrine, (2) consent searches, and (3) the plain view doctrine.

As to consent searches, if ICE agents contact an association manager or a community association and request homeowner or resident records or information, or if they ask for permission to enter non-pubic areas of a community, there are two legally available options. The first option is to consent. An association manager or an association representative can, of course, simply consent and voluntarily hand over documents or information, or open the gates and invite the agents onto the non-public parts of the property to conduct their investigation or enforcement operations. Having consented, the association could not later claim that it was the victim of an unreasonable search or seizure. The second option is to withhold consent and to inform the officers that a judicial search warrant is necessary. The second option is, by far, the better approach to protecting the interests of the association because: (1) as mentioned, there is no general obligation to give law enforcement any information, or to allow access to non-public areas absent a judicial search warrant, subpoena, or other court order to do so, and (2) voluntarily handing over homeowner documents and information, or permitting agents to enter non-public areas could needlessly expose the association to potential liability. 

Suing the federal government involves several complications (i.e., the sovereign immunity doctrine, and the requirements and exceptions of the Federal Tort Claims Act). Because it is possible that a homeowner or resident, or their property, may be injured or damaged as a result of the voluntary information disclosure or the consent to law enforcement’s entry into the non-public areas of the association, an unfortunate situation may arise due to the fact that it is also possible under a variety of circumstances that the government would be shielded from liability (which would be the case if the liability were be based on discretionary government functions, or intentional torts such as wrongful arrest, malicious prosecution, libel, assault, or battery). This would leave the association as the most readily accessible party to be sued. Thus, when asked to consent to searches of non-public areas, or to voluntarily hand over association documents or records, the safest course of action for the association is to politely decline and to state that such disclosures or searches of non-public areas require a judicial search warrant, subpoena, or other court order. 

The United States Supreme Court has also recognized that certain exigent circumstances could render an otherwise unreasonable warrantless search or seizure reasonable under the circumstances. That is, if an agent or officer were to make forcible entry onto private property to search for and seize documents or evidence (or persons), that doing so could be justified by certain types of emergencies (such as threats to life and limb, or the risk of evidence being destroyed). The Supreme Court has also recognized a “plain view” exception to the warrant requirement that might justify forcible entry onto private property to search for and seize evidence if the evidence (and its contraband nature) were plainly visible from an outside vantage point. The upshot of the both the exigent circumstances and plain view doctrines, for present purposes, is that if ICE agents (or any law enforcement officers) seem intent making a warrantless forcible entry into non-public areas, and/or seizing association documents or records, it is important to stand aside and avoid even the perception of actively blocking, obstructing, or impeding them because doing so would subject someone to criminal charges. While withholding consent is a constitutional right – actively obstructing, impeding, or interfering with the activities of law enforcement is a criminal offense. 

If you have any questions, or need advice, regarding ICE searches or requests for homeowner records or documents, please reach out to your association’s legal counsel.