Tulsa Attorney BlogCan the Government Open Your Mail Without a Warrant?

Drug Cop Pried Open Packages, Pilfered Cash

open mail without a warrantFourth Amendment protections against unreasonable searches echo the reasons America’s founding fathers declared their independence from Britain in 1776. The founders balanced government power against a mandate for personal and social freedom.

Since then, U.S. courts have carved out awkward and arguably spurious exceptions to the beloved search and seizure amendment. Yet even those recent judicial allowances for Colonial-style search authority is apparently not enough for some zealous drug warriors.

Not satisfied with courts’ generous grants of “good faith” exceptions and other such loopholes, members of a drug task force in Louisville, Ky. decided the U.S. Bill of Rights balance between freedom and power was too heavily tilted toward freedom. At least three of the five member task force simply did not bother with search warrants in many cases – at least not until after they had opened packages at a UPS processing facility.

One rogue cop on the task force did not even care enough to take the receipt out of the fast food trash he stuffed into a purloined UPS package from which he had stolen cash. Among the three implicated, he was the only officer charged with a crime related to the unauthorized searches of UPS packages at the Louisville facility.

Former Louisville Det. Kyle Willet served 5 months in federal prison for a felony conviction on theft from an interstate shipment. The senior detective’s $4.76 McDonald’s receipt had found its way to the Jefferson County Sheriff’s Office in California, where it exposed his crimes and cost him his career.

The California detectives had expected to find $40,000 in the package delivered to them as part of a drug investigation. Altogether, Willet was charged with stealing $74,400 from UPS packages at the carrier facility where he was assigned to work as a drug detective.

After the sheriff’s investigators in California contacted Louisville police, investigators installed hidden cameras in the areas where Willet worked. They caught him and two other detectives carrying packages from inside the UPS facility to a private vehicle, where packages were opened, searched and resealed. When contraband was found, the drug cops sought warrants to cover up their illegal searches.

If detectives can’t carry your UPS or FedEx package out to the parking lot and sneek a peek to see if it’s worth asking for a search warrant, what can they do? Exactly how private are your letters and packages once they leave your mailbox?

Drug Dogs Behind Most Warrants

Let’s start with packages. First, we need to note that a package might be transported either through the U.S. Postal Service or by private carrier such as UPS or FedEx. For the most part, laws about what can be shipped are the same, with exceptions. Ammunition, for example, can be shipped by private carrier but not by USPS.

Rules for inspection of packages are generally the same with private carriers and USPS. If it’s not obviously dangerous or headed overseas, officials need a warrant to open your packages.
The biggest difference is that the USPS has its own cadre of postal inspectors and procedures for inspecting packages. Regional drug task forces often partner with postal inspectors to carry out drug parcel investigations. To obtain a warrant, investigators must state what probable cause they have to believe the package contains evidence of a crime.

Private carriers like UPS or FedEx might open packages they deem suspicious. Media reports indicate private carriers do not consider their customers cargo to be private. Carriers frequently open packages and notify police of contents. Packages shipped by private carrier that uses commercial passenger airlines to carry cargo might also be subject to inspection by Transportation Security Administration officials.

Investigators often rely on drug dogs to find contraband among millions of packages in transit at carrier facilities. If a drug dog thinks a box of incense mailed from Colorado smells like something illegal, a judge will likely issue a warrant. The drug dog, through a handler, provides probable cause.

Besides drug dogs, investigators my use other information to assert probable cause. Nervousness, excessive eagerness, unusual interest in a package, fictitious information, or strong odors from a package might all be construed as indicators of illegal activity. Investigators seeking probable cause for a search warrant might even visit a location associated with a sender or receiver to establish that sender information was fictitious.

There are a few instances where police might lawfully search a package at a carrier facility without a warrant. They are called exigent circumstances. Smoke pouring from a package, liquids dripping from a package or some other indication that the package is hazardous could provide cause of immediate, unwarranted search of a package.

Packages received from overseas are subject to unwarranted inspection by US Customs and Border Protection agents, with some restrictions on reading of contents during inspections. The Federal Intelligence Surveillance Act (FISA) also allows the US Attorney General in some instances to conduct emergency physical searches including packages or correspondence in transit to or from an agent of a foreign power.

Packages or letters might also find their way to third parties who could report their contents to authorities. Mail sent overseas could be inspected by a foreign government which might then report contents to US law enforcement. Lost or undeliverable packages might also find their way into carriers’ inspection rooms, where illegal contents might be discovered and handed over to police.

Government Can Photograph Envelopes, Packages

With letters, as compared to packages, the difference is that letters are usually mailed through the US Postal Service. First-class letters, priority mail and parcels mailed through USPS are protected by a federal law against mail tampering and against obstruction of correspondence. Federal law makes it a crime to tamper with the mail.

While pilfering drug money from packages shipped via private carrier like UPS or FedEx might result in theft charges, simply opening a first-class envelope mailed through USPS can be a felony. Other classes of mail, however, are not considered private. The US Postal Inspection Service website says classes of mail not considered private may be opened without a warrant.

That’s not to say investigators need a warrant to look at the outside of your first-class mail and private packages. They do not. Since 2001, the outside of each piece of mail circulated through the USPS has been digitally photographed. The images are recorded in computer databases located in more than 200 various mail processing centers.

Postal officials in 2013 said the Mail Isolation Control and Tracking program only maintains records for a week to 30 days after a piece of mail passes through a processing center. The government’s growing capacity to store trivial bulk data, however, leaves ample reason to be concerned that snail-mail “metadata” might eventually, if not already, be stored indefinitely at a central location.

Comprehensive recording of all envelopes circulated in the US Mail followed nearly a century of court-ordered envelope tracking on a piecemeal basis. The mail covers program remains the go-to method for police who want to know who sends mail to a specific person.

The Postal Service provides law enforcement agencies access to the mail covers program without asking a judge or filing any documents with a court. Unlike metadata for telephone and email correspondence, law enforcement access to mail covers does not require even a subpoena.

The New York Times reported mail cover surveillance requests are usually good for about 30 days, with extensions up to 120 days. The requests can be for criminal or national security purposes. About 15,000 to 20,000 criminal mail covers requests are processed each year, anonymous law enforcement sources told The New York Times. The federal rule that governs operation of the mail covers program prohibits collection of material between person and their attorney. 39 CFR 233.3 

Under the mail covers program, a law enforcement officer may ask the Postal Service to record each piece of mail received or sent by a particular person. Nobody other than the police and the post office might ever know that police have been tracking mail activity from a location.

Another way the government can sneakily read your mail without a warrant is to wait until you throw it away. Items discarded as trash are not considered private. Police can and do spirit away the contents of trashcans in the dead of night in hopes of finding evidence among table scraps and discarded junk mail.

Free Consultation: Tulsa Attorney

Generally, although the government cannot open your domestic mail without a warrant in most cases, the government can and does record who you send mail to and who sends mail to you. If you have questions about search and seizure rights related to mail or packages, contact a Tulsa attorney at Wirth Law Office to get answers. Call Wirth Law Office at (918) 879-1681 or send your question using the form at the top of this page.

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