« iepriekšējāTurpināt »
Cir. 1957), petition for cert. dismissed per stipulation, 353 U.S. 952 (1957). The court stated:
*** [I]t seems to us the discussion in [Jackson] *** was primarily purposed to make it doctrinally clear that, in the Government's monopolistic right to provide the public with mail facilities, it could not escape the guaranties of the Bill of Rights, and that as to the search-and-seizure guaranty of the Fourth Amendment it would be required to recognize a distinction between "what is intended to be kept free from inspection" and "what is open to inspection." 239 F. 2d at 821.
The principle of Jackson was explicitly applied to mail covers in United States v. Costello, 255 F. 2d 876 (2d Cir. 1958), aff'g 157 F. Supp. 461 (S.D.N.Y. 1957), cert. denied, 357 U.S. 937 (1958). Discussing the government's use of a mail cover, the court stated:
In Ex parte Jackson * * *, the Supreme Court's discussion shows that a distinction is to be drawn between material which is sealed and material which is open for inspection. We think the Jackson case necessarily implies that without offense to Constitution or statute writing appearing on the outside of envelopes may be read and used. There seems to be a similar implication in Oliver v. United States, * * *: certainly that case does not suggest that the law is otherwise. 255 F. 2d 876 at 881. (Citations omitted, emphasis added.)
The Court of Appeals thus refused to disturb the following portion of the lower court's decision:
It was not prying into their business or secrets to note what the senders had made public on the face of the letters.
Any delay here was merely incidental to a lawful watch authorized by the postal regulations.
The evidence shows no violation of Costello's rights under the Fourth Amendment.
157 F. Supp. 461 at 471 (Footnote omitted, emphasis added.)
Further explicit recognition of the constitutionality of mail covers has been afforded in United States v. Schwartz, 283 F. 2d 107, 111 (3d Cir. 1960), aff'g 176 F. Supp. 613 (E.D. Pa. 19593, cert. denied, 364 U.S. 942 (1961); Canaday v. United States, 354 F. 2d 849, 856 (8th Cir. 1966); Cohen v. United States, 378 F. 2d 751, 760 (9th Cir. 1967), aff'g 251 F. Supp. 269 (N.D. Cal. 1965), cert. denied, 387 U.S. 917 (1967); Lustiger v. United States, 386 F. 2d 132 (9th Cir. 1967), cert. denied, 390 U.S. 951 (1968); and United States v. Isaacs, 347 F. Supp. 743, 750 (N.D. Ill. 1972), aff'd, rehearing denied, 493 F. 2d 1127 (7th Cir. 1974), cert. denied, 417 U.S. 976 (1974).
Opening of Mail
First-class mail is protected by the Fourth Amendment of the U.S. Constitution. First-class mail is matter closed against postal inspection. Title 39, Code of Federal Regulations, 131.2(a) (1) (iv). (20)
Title 39, United States Code, § 3623 (d) provides in part, "The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection. * * * No letter of such a class of domestic origin shall be -opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee." Moreover, improper opening of first-class mail or mail tampering can subject an individual to serve criminal penalties. 18 U.S.C. §§ 1701-1703. 1709. Part 115 of the Postal Service Manual (codified as § 115.1 of title 39, Code of Federal Regulations) (21) provides: "First-class mail is given absolute secrecy while in our custody. No persons in the Postal Service, except employees of deadmail offices, may open first-class mail without a legal warrant, even though it may contain criminal or otherwise unmailable matter or may furnish evidence of the commission of a crime." Although § 3623 (d) of title 39 speaks only of letters. packages closed against inspection are afforded the same protection under postal regulations.
Title 39, Code of Federal Regulations § 131.2(a) (3) (iii) (22) provides: "Matter closed against inspection includes mail of any class so wrapped as not to be
easily examined, except second-, third-, or fourth-class matter sealed subject to postal inspection."
The leading case in this area is Ex parte Jackson, 96 U.S. 727 (1877). In this case, a unanimous court held that although Congress had broad power over the nation's postal system, including the right to determine what shall be excluded from the mails, government policies exercising that power must be enforced “consistently with rights reserved to the people, of far greater importance than the transportation of the mail. *** Letters and sealed packages [intended to be kept free from inspection] in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guarantee of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household." 96 U.S. 733.
The Court's distinction between what is "intended to be kept free from inspection" and what is "open to inspection" has been consistently followed ever since. The Court recently referred to this distinction with approval in U.S. v. Van Leeuwen, 397 U.S. (1970). The Court in this case held that postal officials may detain suspicious first-class mail for a reasonable time while an investigation and an application for a search warrant are made.
A legally authorized search warrant is required to open and search first-class mail. Furthermore, under its current mail classification system and regulations, the Postal Service does not subject to a warrantless search any item which the sender has mailed air mail, air parcel post, or priority mail, except in those cases where such mail bears a notation by the sender authorizing postal examination
Even in those cases where probable cause cxists to believe there is contraband in first-class mail, e.g., damaged mail exposing contraband or other reliable information, a search warrant must be obtained without causing an unreasonable delay to the suspect mail. Although exposure of contraband through accidental damage to mail may be used as probable cause for a search and seizure warrant, the mail may not be withdrawn for use as evidence in a criminal proceeding without following the search warrant procedure.
A search warrant authorized by Rule 41 of the Federal Rules of Criminal Procedure may be issued upon receipt of a request from a federal law enforcement officer or an attorney for the government. Under Rule 41 (h), the Attorney General has designated the Postal Inspection Service as one of the agencies authorized to request search warrants. However, only in the rare emergent case is a Postal Inspector permitted to seek a search warrant without the concurrence of the U.S. Attorney's office.
Section 159.7 of title 39, Code of Federal Regulations (23) defines dead mail as matter deposited in the mail which is or becomes undeliverable, or is unmailable, and which cannot be returned to the sender. At dead letter branches, dead first-class letters are opened in an attempt to determine the name and address of the sender so that his property may be returned. Only those employees especially designated to open dead letters are allowed to open such matter and then only under proper supervision. Letters which contain correspondence only and which are without sufficient information to enable a return to the sender or delivery to the addressee are destroyed.
Second-, Third-, and Fourth-Class Mail
Matter which is "intended to be kept open to inspection" within the meaning of Ex parte Jackson clearly includes second-, third-, and fourth-class mail under present postal regulations. Second-, third-, and fourth-class mail are subject to postal inspection by authorized postal employees. Title 39, Code of Federal Regulations, §125.2(e); §§ 134.8 and 135,7. (24)
Payment of postage at the rates established for these classes of mail is considered consent by the sender to examination of the mail contents since the
sender is free to choose the greater privacy of first-class mail. The courts have perceived no constitutional impediment to warrantless searches of these classes of mail. Santana v. U.S., 329 F. 2d 854 (1st Cir. 1964); Webster v. U.S., 92 F. 2d 462 (6th Cir. 1937).
Subsequent decisions by federal courts of appeal have been consistent with Jackson and have merely adjudicated whether particular mail items were intended to be kept free from postal inspection. Oliver v. U.S., 239 F. 2d 818 (8th Cir. 1957); Santana v. U.S., supra. Although second-, third-, and fourth-class mail may be opened for inspection, if such inspection discloses contraband, a search warrant must be obtained prior to the seizure of the item or withdrawal from the mails for use as evidence against the sender in a criminal proceeding.
Perhaps it should also be pointed out that pursuant to Customs laws (19 USC 1582, as implemented by § 162.2 of title 19, Code of Federal Regulations), mail of foreign origin is subject to customs inspections. Postal regulations recognize such foreign mail is subject to customs inspections without regard to class. Section 61.1 of title 39, Code of Federal Regulations. (25) The most recent case of which we are aware upholding the right to subject foreign originating mail to a customs search is United States v. Odland, 502 F. 2d 148 (7th Cir. 1974).
JANUARY 30, 1975.
Mr. WILLIAM COTTER,
DEAR MR. COTTER: As Chairman of the Subcommittee on Courts, Civil Liberties, and the Administration of the House Committee on the Judiciary, I have legislative and oversight responsibilities in the area of surveillance and intelligence gathering.
Pursuant to these responsibilities, I would like to request at your earliest convenience a written response to each of the following questions.
For the period of calendar years 1973 and 1974:
1. How many mail covers were initiated each month? Please list by requesting agency and indicate the average duration of the covers by agency.
2. How many mail openings were authorized by court order? Please list these by requesting agencies and indicate duration of activity.
3. How many mail openings were initiated pursuant to the National Security powers of the President? Please list by requesting agency and indicate duration of activity.
4. Please list personnel who are authorized to institute either or both mail covers and mail openings. Who is nationally responsible for the management of these programs?
5. Please forward all Postal Service internal regulations, directives, and memoranda governing opening of the mails, and the use of mail covers.
Thank you in advance for your assistance and cooperation in this matter.
ROBERT W. KASTENMEIER,
Chairman, Subcommittee on Courts, Civil Liberties, and the Adminis-
Hon. ROBERT W. KASTEN MEIER,
of Justice, House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: This is in further response to your letter of January 30, 1975, and supplementing my interim reply of February 5, 1975.
In your letter you requested written response to five specific questions. Those questions are addressed in this letter and its attachments.
For the period of calendar years 1973 and 1974.
1. Question: How many mail covers were initiated each month? Please list by requesting agency and indicate the average duration of the covers by agency. Response: Attached as Exhibit “A” are listings of mail covers initiated during calendar years 1973 and 1974.
2. Question: How many mail openings were authorized by court order? Please list by requesting agencies and indicate duration of activity.
Response: The requested list is attached as Exhibit "B." Recorded are the court authorized search warrants directed to Postal Inspectors and those directed to other authorized agents when actual service of the warrant included cooperation by a Postal Inspector.
The Postal Inspection Service has no means of identifying those search warrants issued to another agency and served by that agency directly upon the head of a postal installation without any participation by a Postal Inspector.
Of the 431 warrants listed, almost all involved single pieces of suspect mail. However, certain investigations conducted by the Postal Inspection Service necessitate the seizure of more than one piece of mail deposited by an alleged violator. Most frequently these multiple seizures occur incident to the investigation of violations of 18 USC 1302, "Mailing lottery tickets or related matter," and 18 USC 1461, "Mailing obscene or crime-inciting matter." Individual court ordered warrants for the seizure of lottery tickets, obscene advertisements, and the like have specified as many as 11,000 pieces of mail. Title 39 USC 3001, Nonmailable matter, declares as nonmailable, matter the deposit of which in the mail is punishable under certain enumerated sections of Title 18 USC. The sections enumerated are within the investigative responsibility of the Postal Inspection Service since use of the mails is involved.
3. Question: How many mail openings were pursuant to the National Security powers of the President? Please list by requesting agency and indicate duration of activity.
Response: The Postal Inspection Service did not initiate any mail openings pursuant to the National Security powers of the President. Nor did any other agency request that such openings be initiated.
4. Question: Please list personnel who are authorized to institute either or both mail covers and mail openings. Who is nationally responsible for these programs?
Response: The Chief Postal Inspector is the principal officer of the United States Postal Service in the administration of all matters governing mail covers. With the exception of the Dead Letter Branches (39 CFR 159.7) there is no Postal Service program for the opening of mail closed against inspection.
Mail matter closed against inspection may be opened through the establishment of probable cause and the successful application for a lawful search warrant. This judicial procedure is available to all Postal Inspectors as it is to any agent empowered to request a warrant.
In specific response to the question there follows a list of those Postal Inspection Service management positions authorized to approve requests for mail covers. The positions are listed by their level of organizational operation. The figure in parenthesis indicates the number of approval officers in each position. National-Chief Postal Inspector (1); Assistant Chief Inspector, Office of Criminal Investigations (1); and Assistant Chief Inspector, Office of Security (1).
Regional-Regional Chief Inspectors (5); Assistant Regional Chief Inspectors (5); and Regional Branch Managers (4).
Divisional-Inspectors in Charge (20) and Assistant Inspectors in Charge
5. Question: Please forward all Postal Service internal regulations, directives, and memoranda governing opening of the mails, and the use of mail covers. Response: See Exhibit "C."
WILLIAM J. COTTER,
Chief Postal Inspector.
January February March April May June July
November December Total days
32 1, 547
| | | | | | | | | | | | | |