Recently, there's been some confusion about when federal agents have to identify themselves while carrying out enforcement actions. In addition, there's a lot of misinformation regarding the rights of people who have been arrested in immigration raids or during protests. And there's a good reason for all the confusion: it can get complicated quickly.
There are also some real-world considerations that mean the law is not always clear (or clearly followed). What's more, arrested suspects generally must wait to challenge any law enforcement actions until after the arrest, and the remedies for violations can be limited. Keeping these things in mind, here are some generally useful rules of thumb:
- Federal agents should disclose their identities when making an arrest in most, but not necessarily all, cases. Failure to do so may violate the suspect's Fourth Amendment right against unreasonable search and seizure.
- Federal agents do not need to disclose their identities when undercover or while undertaking certain investigative actions.
- A relatively recent federal law requires federal agents responsible for maintaining control during a civil disturbance to wear insignia identifying their agency. However, no law prohibits federal agents from wearing masks or plainclothes when making an arrest.
- Every suspect has the right to request that federal agents show identification. This does not mean that federal agents must comply with that request in all cases.
Who Are Federal Agents?
Several federal agencies are responsible for enforcing federal law. Notable examples include the Federal Bureau of Investigation, Immigration and Customs Enforcement, and the Drug Enforcement Administration. In carrying out enforcement actions, federal agents must follow federal law and respect the constitutional rights of any suspects or arrestees. Agencies and their agents may work together on certain cases or investigations.
When Gathering Information/Investigating
When investigating federal crimes, federal agents do not need to identify themselves. Otherwise, it would be impossible to go "undercover" or conduct certain investigations. Federal agents cannot entrap suspects or violate their Fourth Amendment rights, but agents do not necessarily need to disclose their identities or intentions when investigating potential criminal activity.
However, there are a number of evidentiary rules and Fourth Amendment rights that are afforded to people accused of crimes. A full discussion of those rights is beyond the scope of this article, but you can read more about them (such as the expectation of privacy) elsewhere on FindLaw.
When Making a Criminal Arrest in a Home or Private Space
While undercover agents do not need to identify themselves, this changes when making an arrest, particularly if they are going to a suspect's home. It is considered good practice for agents to identify themselves in most cases. For example, even during an FBI home raid, an agent will likely say something to the effect of "This is the FBI, you're under arrest." However, there is not necessarily a bright-line rule for when federal agents must identify themselves.
The U.S. Supreme Court addressed this issue in Wilson v. Arkansas(1995). In that case, the Supreme Court held that the "knock and announce" rule of common law was part of the inquiry into whether law enforcement violated the suspect's Fourth Amendment rights. However, Justice Clarence Thomas, writing for the unanimous court, also held that not every entry must be preceded by an announcement. The Court's rule was, essentially, to take it on a case-by-case basis to determine whether the failure to announce was reasonable.
Administrative Enforcement Actions By Immigration Agents
What about immigration raids and arrests? Importantly, being in the country "illegally" is not necessarily a crime in itself. The complex nature of immigration and criminal law can affect immigration enforcement undertaken by ICE in several ways. An important distinction is the difference between administrative and judicial warrants. An administrative warrant (and subsequent arrest) involves a civil issue.
Immigration and Customs Enforcement (ICE) agents will typically have an administrative warrant that allows them to arrest people suspected of an immigration violation. Where ICE agents make the arrest can affect whether they need to identify themselves.
Making an arrest in public: ICE agents may be able to make an arrest in a public space without an administrative or judicial warrant if they have probable cause and the immigrant is likely to flee.
ICE agents can make an arrest in a public space with any kind of warrant. They do not necessarily need to first identify themselves, although the suspect is well within their rights to request identification. It may be possible to bring a Fourth Amendment claim if ICE agents fail to identify themselves. In addition, regardless of the arrest warrant, all arrestees have the right to habeas corpus, which the Supreme Court recently affirmed. This means ICE cannot immediately arrest and deport a suspect without due process.
When making an arrest in a private space: If ICE agents are looking to enter your home, they must identify themselves. You have the right to refuse them entry unless they have a judicial warrant (a warrant signed by a judge).
During Protests
During the first Trump administration, federal agents working for ICE began appearing at protests in militarized gear without insignia. In response, Congress passed a law in 2021 requiring all federal agents, including those from ICE, to wear visible identification indicating the government agency they represent when undertaking crowd control during protests.
Can Federal Agents Hide Their Faces?
Currently, ICE agents are conducting administrative arrests while masked. In some cases, they are even doing so in plain clothes, making them hard to distinguish or to see coming. This raises important Fourth Amendment concerns, but there is currently no federal law that requires ICE to wear a uniform or be personally identifiable.
However, the Department of Homeland Security has created regulations regarding the arrest of people suspected of an immigration violation. Those regulations state that an ICE agent should identify themselves as a federal agent and state the reason for the arrest "as soon as it is practical and safe to do so."
If an ICE agent fails to abide by regulations or constitutional protections, arrested individuals can contest their treatment or arrest. If your rights have been violated in the process of an arrest, contact an attorney as soon as possible.
Can Others Identify or Film ICE Agents?
Yes. Filming law enforcement is legal in public spaces. It is also legal to identify where law enforcement agents are (for example, by posting information on social media).
However, interfering with a federal agent when making an arrest is a crime. The line between legally filming law enforcement and interfering with an arrest can be blurry. If you do film federal agents, be careful not to interfere with or touch any agent, or you could be subject to arrest and prosecution.
Related Resources
- How to Fight Wrongful Deportation (FindLaw's Law and Daily Life)
- California Governor Sues Trump Over Unlawful Deployment of National Guard (FindLaw's Federal Courts)
- Unanimous Supreme Court Ruling Allows Family To Once Again Bring Lawsuit Over Mistaken Raid (FindLaw's Federal Courts)
