Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Iowa. He is not asking about opening anyone’s mail. He wants to open the mailbox and read the names printed on the outside of the envelopes, to identify who lives at a house so he can mail a citation when nobody answers the door.
Hey guys, Anthony Bandiero here bringing you another roadside chat. This question comes from an officer in Iowa about mailboxes. Basically the question is this: can I open up a mailbox to look at the mail to see who lives there?
All right. And I’ll give you some more context. It’s more complicated than that. But guys, thank you so much for watching this channel. I hope it helps. A lot of cops tell me that they play these videos during roll call. So if I see a few hundred views on this video, then it probably means maybe potentially several thousand cops end up seeing them. And that’s great. Makes me feel good that this education is helping.
All right. This is actually a pretty good question. It says, is there an expectation of privacy in a street side mailbox?
So the officer says, I’m not talking about opening up the mailbox and opening up their mail, right, their packages. Clearly that would be a violation of a person’s reasonable expectation of privacy. They have an expectation of privacy in first class mail and packages. But I want to see the information printed on the outside of the envelope, and see if the person is potentially living there. So for example, I’m trying to identify someone in the home in order to mail a citation, since no one wants to answer the door.
Is there an expectation of privacy in what is printed on an envelope?
All right. So what about that? Well listen, when you look at most cases involving mailboxes, and they’re a little older cases, they say that people do not have a reasonable expectation of privacy, number one, in what’s printed on the outside mail, right, the addresses. So if you have lawful access to the envelope, package, etc., then viewing what’s on the outside is not a search under the Fourth Amendment.
Do you have lawful access to the mailbox in the first place?
All right, but that’s the next question. Do we have lawful access? Cases that talk about mailboxes generally say that if the mailbox is by the sidewalk and so forth, and people could open it and look at it, so the courts have allowed cops to open up mailboxes.
But I think we need to be careful on a couple things. Number one is, I do think that the situation changes significantly if that mailbox is moved by the front door and the cop is going onto the curtilage just to look at a person’s mailbox. You feel what’s going on here?
Does walking onto the curtilage to check a mailbox violate Jardines?
So that would implicate another issue, which is called Jardines, a case called Florida v. Jardines. And that case says that when you go onto somebody’s curtilage, you know, we kind of use the Girl Scout rule. Even if you’re conducting an investigation, the point is, you do not get to go on people’s curtilage and just do what you want. That’s trespassing. It’s a constitutional trespass. Not just a physical trespass. So it’s a constitutional trespass.
So would this person allow you to enter their curtilage just to go through their mailbox? And the answer is no. The mail person gets to go to their curtilage and do it, because it’s an implied invitation. But you shouldn’t be doing it.
What if you are already there for a knock and talk?
Now at the same time, the facts change if you are going up there for a knock and talk. And they don’t answer, and the mailbox is right there. Can you open it? Well, if you look at most case law, the answer is yes, again, because a person does not have a reasonable expectation of privacy in the mailbox, because the mailman does it and so forth.
But I think that line of thinking is maybe changing a little bit, because of various cases including one called Jones, where a search occurs if you trespass onto a person’s container, property, and so forth with the intent to gather information.
That mailbox at the end of the day is not government property. It is owned by the homeowner. It may be approved by the Postmaster General and so forth, but that is not a piece of government property. So the person would not expect, or it would not be reasonable for the general public to just go through people’s mailboxes, right. We would actually probably consider that criminal intent.
Are courts getting less friendly to this?
So when the cops do it in 2022 and beyond, I think they’re going to be very careful. And another thing that comes to mind is, courts like Iowa and New Jersey, New Mexico, Oregon, Washington, courts are actually now starting to view trash put out for collection as potentially having some privacy interest. We know in the old days trash used to never have any privacy interest when it was public collection. Now courts are even talking about trash having some level of protection now under privacy analysis.
But the point is, I think the courts are going to be more receptive to arguments that cops opening up mailboxes, especially when they’re right next to the front door, and especially when the cop went onto the curtilage just to look at a mailbox, it’s very problematic. Whether you can do it if you’re there for a knock and talk is a different question. I think it’s unresolved. So you’re going to be making some case law here.
Does the reason you want the name matter?
Just think about it, right. Be able to talk about why you thought it was maybe required or reasonable for you to do it. I’ve got to tell you that my officer here that needs to issue a citation and doesn’t have their information, let’s say it’s a citation for illegal parking or whatever, I’ve got to tell you, it’s kind of compelling, right. I can see a court upholding that.
But a drug investigator just kind of trying to see who’s living at the house doing the same thing, I think the courts potentially rule against that act. So something to think about either way. I wish I had more of a black and white answer for you. Things are changing here.
The short version
- There is generally no reasonable expectation of privacy in what is printed on the outside of an envelope. Opening the mail itself is a different story.
- The real question is whether you have lawful access to the mailbox. A curbside box is the easy case.
- Walking onto the curtilage just to look at a mailbox by the front door is a constitutional trespass under Florida v. Jardines. The mail carrier has an implied invitation. You don’t.
- If you are already there on a knock and talk and nobody answers, most case law says yes. But Jones and the trespass-to-gather-information theory may be shifting that.
- The mailbox is not government property. It belongs to the homeowner.
- Courts in Iowa, New Jersey, New Mexico, Oregon and Washington are starting to find privacy interests in trash put out for collection. The direction of travel matters.
- Your purpose matters. A parking citation is compelling. A drug investigator fishing for names is not.
- It’s unresolved. You’re going to be making some case law here.
Related from Blue to Gold
- Can Police Conduct Knock and Talks at Odd Hours of the Night?
- No Trespassing Signs
- Can a Recreational Vehicle (RV) Have Curtilage?
This article is an edited transcript of Roadside Chat Ep. #305. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
