By Rick Collins
Q: Do the postal inspectors need a warrant to open a piece of mail addressed to me?
A: The Fourth Amendment protects against unreasonable searches and seizures of those things in which we have a legitimate expectation of privacy: our “persons, houses, papers and effects.” Implicit is our privacy interest in the personal letters and correspondence we send to others and they send to us. Long ago, the U.S. Supreme Court held that letters and sealed packages in the mail are as fully protected as if they were kept in the sender’s own house, and can only be opened and examined pursuant to a search warrant based upon probable cause. [i] But the Court distinguished between “different kinds of mail matter, – between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined.” [ii]
Congress followed up by authorizing the creation of different classes of mail, protecting only the highest class from warrantless searches: “The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection. … One such class shall provide for the most expeditious handling and transportation afforded mail matter by the Postal Service. No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law…”.[iii] The Postal Service protects the type of mail intended for actual or personal correspondence: First-Class Mail (including Priority Mail) and Express Mail. Periodicals (formerly Second-Class Mail), Standard Mail (formerly Third-Class Mail), and Package Services (formerly Fourth-Class Mail) are not protected from warrantless inspection. [iv]
As part of their routine, postal inspectors have a “drug-smuggling profile” to help identify suspicious mailings. The court-approved profile includes: size and shape of the mailing; heavy wrapping in tape with an attempt to seal all openings; hand printed or written labels; unusual return name and address; unusual odors coming from the package; fictitious return address; package sent from or to a “source city or a destination city” for illegal drugs. [v] Suspicious mail can be temporarily detained – but not opened – for investigation if inspectors have a reasonable suspicion of criminal activity and the packages aren’t detained for an unreasonable time. [vi] Investigation may include shaking or feeling the outside of the mailing, researching the identities or addresses of the designated sender or recipient, or subjecting the mailing to a drug-sniffing dog. [vii] If the investigation uncovers facts that raise suspicion to the higher level of probable cause, the inspectors will prepare an affidavit in support of an application for a search warrant to open the package. Once signed by a magistrate, the warrant permits the mailing to be opened and the contents examined. Where investigative circumstances require, delays of up to 72 hours between the detention of suspicious mailings and the approval of a magistrate have been upheld as “not unreasonable.” [viii]
In sum, your domestic First-Class or Express Mail is protected to the extent that it cannot be opened without a warrant signed by a judge and based upon probable cause (a standard higher than reasonable suspicion). But since Congress has protected such mail of “domestic origin” only, what protection is afforded to mail coming to you from foreign countries? And what protections apply to packages sent to you through private shippers like FedEx and UPS? The next installment will cover private couriers, later to be followed by international mail. Stay tuned!