While Americans often think of privacy as a fundamental right, the truth is not so simple. Contrary to popular belief, there are no explicit protections for privacy in the Constitution. The closest thing we have is the Fourth Amendment’s protection against “unreasonable search and seizure.” But there have been various exceptions to this carved out over recent decades, especially with the rise in electronic surveillance.
But while many Americans increasingly take it for granted that their electronic correspondence can be monitored, there are also various situations where traditional mail via the Post Office can be intercepted and opened as well.
These situations are frequently connected to concerns that drugs or other illegal cargo is being transported. Your mail may even be searched by the government under the pretext of national security.
This article will cover what expectations of privacy you can have regarding your mail, when you can expect it to be opened, and under what circumstances the police, as well as different mail carriers, may inspect your mail.
Classes of Mail
First, it’s important to understand that there are different types of mail and different laws that apply to each type. For example, first-class mail, which includes letters and postcards, is generally protected under federal law and cannot be opened without a warrant. This means that the police must have probable cause to believe that a crime has been committed and must obtain a warrant from a judge before they can legally open your first-class mail.
On the other hand, other types of mail, such as bulk mail and advertising mail, are not protected under federal law and can be opened without a warrant. This is because these types of mail are not considered to be as private as first-class mail.
The United States Postal Service (USPS) states that non-private mail can be opened without a warrant. Therefore, if you want to ensure the contents of your mail is only seen by its intended recipient, be sure to opt for first-class mail. And if you did choose first-class and believe your mail was still opened, call a criminal defense lawyer in Oklahoma City to discuss your case.
USPS vs Private Carriers
Before police can even search your mail, it starts off in the mailroom of either the USPS or one of the private carriers. All of these carriers have important differences in not only what may be shipped, but how your mail is handled. For example, while most things can be shipped through both the USPS or a private carrier, the USPS won’t ship ammunition.
You should also be aware that private carriers appear to have less respect for the privacy of your mail, with reports indicating they are more likely to open packages than USPS workers. If they find the contents of your package suspicious, they may notify the authorities. In addition, private carriers who transport cargo on commercial passenger planes may also be subject to inspection by Transportation Security Administration officials.
The USPS, on the other hand, has established protocols for inspecting packages because it is a government body. It also has a core of trained postal inspectors, who frequently work with law enforcement officials frequently to investigate suspected drug packages. Warrants are required for these investigations, and they must be based on probable cause. The detective must state that they think the package has something to do with crime.
This does not always require anything elaborate; sometimes, a drug dog that snifs your incense package and reacts as if its narcotics could be enough. Or, you could appear nervous, leading inspectors to suspect you may be involved in criminal activity.
But what about the situations where authorities can open your package without a warrant?
Three Reasons Police May Open Your Mail Without a Warrant
Generally, police can’t open your mail without a warrant. As stated before, the Fourth Amendment to the U.S. Constitution protects people from unreasonable searches and seizures, including of their mail, and a warrant is typically required in order to conduct a search or seizure that would otherwise violate this amendment.
There are a few limited exceptions to this general rule, however:
1. It Appears Dangerous
Per the Supreme Court’s decision in Mincey v. Arizona, private mail can be opened without a warrant under “exigent circumstances.” This means, for example, if your package appears to be leaking, vibrating, making noise, or otherwise giving an impression of containing something imminently dangerous, police may open the package to “preserve human life or avoid serious injury…” Mincey v. Arizona, 437 U.S. 385, 392 (1978)
2. Overseas Mail
Another exception is if the mail is being sent internationally and is being inspected by customs officials.
This applies both ways: Customs officials are allowed to open and examine mail that is being sent internationally in order to ensure that the contents do not violate any laws or regulations, such as by containing illegal drugs or other prohibited items; likewise, foreign authorities naturally don’t need to seek warrants from American judges to open your mail – though they may communicate with their American counterparts depending on what they find.
It’s important to note that while Congress authorizes the warrantless inspection of mail received at the border, some restrictions have been placed on reading correspondence. 19 U.S.C. § 1583(a)(I)
3. FISA Investigations
Finally, the Federal Intelligence Surveillance Act (FISA) authorizes the US Attorney General to conduct searches of packages or correspondence to or from a different country. While the AG is required to seek a warrant to do this from a special FISA court, unlike normal warrants, FISA warrants are easy to obtain and rarely refused.
Other Considerations
Keep in mind that while first-class mail has some privacy protections for its contents, the government doesn’t need any permission to examine the outside of your mail (ex: “to” and “from” addresses). Since the anthrax attacks of 2001, the USPS has digitally photographed the outside of every piece of mail moving through its system as part of a program known as the Mail Isolation and Tracking Program. Those images are then stored in computer databases spread across more than 200 mail processing facilities across the nation. Any law enforcement agency can obtain that information without the need for a warrant or even a subpoena.
Additionally, police can freely go through your garbage to look for discarded mail if they are investigating you. Anything thrown away is considered fair game from the perspective of law enforcement, with no warrant required to take a look.
Low-cost Consultation With an OKC Criminal Defense Attorney
There are a few exceptions to the general rule that the government cannot open your domestic mail without a warrant, and it is certainly possible for them to keep track of whom you are corresponding with. If you are concerned your mail was improperly searched or face contraband charges contact the Criminal Defense Law Office of Oklahoma City at 405-588-4529 (588-4LAW) today. If you prefer email, the contact form is located in the top-right corner of the page. A felony defense lawyer from Oklahoma City will be in touch with you shortly.