Appellant was convicted by a jury of violation of 21 U.S.C.A. Sec. 174 (1972), which proscribes receiving, concealing and facilitating the transportation and concealment of a narcotic drug. There are several substantial and close issues which we need not reach because the entire case rests upon an invalid warrantless governmental search of a parcel while in the United States mails. The conviction must, therefore, be reversed and the prosecution dismissed.

On the basis of undisclosed information the postmaster of Ozark, Alabama, was alerted to watch for incoming parcels addressed to James F. Phillips. A sealed parcel arrived addressed to Phillips at an Ozark street address. It bore a stamped notation "air mail special delivery" and postage in the amount of $1.25 but no notation as to the class of mailing. It weighed 11 1/2 ounces. Postal authorities were of the opinion that the parcel was fourth class matter, which, while in the possession of postal authorities, may be opened for postal inspection without the necessity of a warrant.1 Santana v. United States, 329 F.2d 854, 856 (1st Cir.), cert. denied, 377 U.S. 990, 84 S. Ct. 1915, 12 L. Ed. 2d 1044 (1964). Cf. 39 U.S.C.A. Sec. 4058(a) (1962)2 and 39 C.F.R. 135.7 (1972).3 The package was opened by postal officials and found to contain a white powdery substance which, we will assume for purposes of this opinion, the jury properly could have found was a narcotic. Subsequently, after some of its contents were removed, the parcel was rewrapped and delivered to Phillips.

While fourth class matter is subject to opening for postal inspection, the fourth amendment protects first class mail from warrantless opening for postal inspection, and that constitutional limitation has been carried forward into a statute. Ex parte Jackson, 96 U.S. 727, 24 L. Ed. 877 (1877); Oliver v. United States, 239 F.2d 818 (8th Cir. 1957); Webster v. United States, 92 F.2d 462 (6th Cir. 1937); Lustiger v. United States, 386 F.2d 132, 139 (9th Cir. 1967), cert. denied, 390 U.S. 951, 88 S. Ct. 1042, 19 L. Ed. 2d 1142 (1968); United States v. Van Leeuwen, 414 F.2d 758 (9th Cir. 1969), and 39 U.S.C.A. Sec. 4057 (1962).4

The basis for the opinion of postal authorities that the package was fourth class matter was unclear at trial and no clearer in the government's brief or at oral argument of this appeal. The fee for special delivery service was 45 cents.5 Postal officials explained that they deducted this amount from the postage of $1.25, leaving 80 cents, which is the minimum fee for any air parcel post package, irrespective of class, weighing less than one pound. 39 U.S. C.A. Sec. 4303(d)(1) (App.1972). A postal inspector was permitted to testify as an expert, over objection, that in his opinion, based upon his experience and postal laws and regulations, the parcel was fourth class.6 The great, and unexplained, leap in logic by the government and its witnesses is the implicit assumption that a sealed package sent air parcel post is neither first class matter nor entitled to the same privacy as first class matter, and instead, as an affirmative proposition, is fourth class matter. We say "as an affirmative proposition," because under familiar principles the burden was upon the government to establish that it had the right to make a warrantless search.7

Under 39 U.S.C.A. Sec. 4251(a) (App. 1972) first class mail consists of:

[M]ailable (1) postal cards, (2) post cards, (3) matter wholly or partially in writing or typewriting [with certain exceptions], (4) bills and statements of account, and (5) matter closed against postal inspection.

Fourth class mail consists of mailable matters:

(1) not mailed or required to be mailed as first class mail;

(2) within the size and weight limits prescribed for fourth class mail;

(3) not entered as second class mail.

39 U.S.C.A. Sec. 4551(a) (1962). Second and third class classifications have no arguable relationship to this parcel or this case.

In 1967 Congress amended the postal laws so as to eliminate the preexisting service for heavier [i. e., in excess of eight ounces] "air mail of the first class," see 39 U.S.C.A. Sec. 4303(d)(2) (1962), repealed by Pub.Law 90-206, Title I, Sec. 102(b)(2), 81 Stat. 614 (Dec. 16, 1967), and so as to establish a new and lower rate for some first class mail items.8 It did so by blending into one enactment the preexisting concept of "air parcel post" and the eliminated service for "air mail of the first class" and by providing in 39 U.S.C.A. Sec. 4253(b) (App.1972) that "[f]irst class mail weighing more than thirteen ounces shall be mailed at the rates of postage established by section 4303(d) of this title [the rates for air parcel post] and shall be entitled to the most expeditious handling and transportation practicable." The pertinent legislative history of the 1967 amendments reveals the following:

The rate on air parcels, now mailed at a zone rate, is revised. Beginning with the effective date of the postal provisions of this legislation, airmail weighing more than 7 ounces and first-class mail weighing more than 13 ounces will be combined as one class of mail and will be delivered by the most expeditious means of transportation available.

This is a significant departure from the present method of determining class of mail and postage rates for heavier parcels. Because of the significantly high cost coverage of heavy first-class and airmail parcels, the Post Office Department has recommended and the committee and the House of Representatives have approved a new rate schedule combining these two kinds of heavy mail at a zone rate schedule which is generally lower than present rates for air parcel post or first-class mail. A particular benefit to the public will be the 80cent nationwide airmail rate for any parcel weighing 1 pound.

2 U.S.Code Cong. & Admin.News, 90th Cong. 1st Sess.1967, p. 2258 at 2262 (emphasis added).

Prior to these 1967 amendments the separate concepts of "air parcel post" and of classes of mail had proceeded along lines of development that were uncorrelated, and at times contradictory.9 We do not find in the pre-1967 statutory development of the air parcel post concept any guidance on the question of whether the search of the instant parcel violated the fourth amendment.

We conclude that this sealed air parcel sent under the new "one class of mail" could not be opened without a warrant. We reach that conclusion as a matter of law by examining the 1967 amendments in the light of the fourth amendment and of the pre-1967 implementation of that amendment by Congress in the field of postal matter. The beginning point is the Constitution itself and the rights of privacy protected by the fourth amendment. The constitutional guaranty is implemented at least in part by the statutory scheme for classification of mail into-insofar as here applicable-first and fourth class matter; the statute forbidding the warrantless opening of a first class item;10 and the supporting regulations that prescribe how first class matter shall be wrapped and marked and how fourth class matter shall be wrapped. 39 C.F. R. Secs. 131.2(3) and 135.7 (1972). Ambiguities may arise, such as the sender's sealing a parcel, which should require it to go as first class matter, 39 U.S.C.A. Sec. 4251(a)(5) (App.1972), but paying only fourth class postage, or, hypothetically, paying only fourth class postage but writing on the parcel "Do not open for postal inspection." Such ambiguities case doubt on the proper classification of the item and on the intent of the sender as well. But, indisputably, the privacy of a sealed item bearing the proper amount of postage for a first class item is protected from warrantless opening, not because it is given the appellation "first class" but because the Constitution commands that result. Nothing in the legislative history of the new "one class of mail" suggests that an item possessing the characteristics that had entitled it to the privacy protected by the fourth amendment (and thus formerly to first class status) was intended to have a lesser scope of privacy by being recharacterized as within the new "one class" and sent at a new rate lower than the first class rate. Indeed, for items sealed against postal inspection, Congress probably could not constrict the scope of privacy without abrogating the fourth amendment.

An argument can be made that any parcel sent in the new class, sealed or unsealed,11 is entitled to be treated as though first class mail and exempted from warrantless opening.12 But we leave determination of that question to some other case in which the issue is squarely raised and adequately presented.13

We have reached the conclusion that, as a matter of law, this sealed air parcel should not have been opened without a warrant. There are alternative grounds commanding the same result. First, the burden of proof was upon the government to establish its right to make a warrantless search of a private parcel. The government has not discharged that burden but has merely assumed that the matter was settled by the opinion of one of its employees that the parcel was fourth class. Second, even if it is assumed arguendo that an air parcel sent with correct postage under the new rates can have a classification other than first class matter, and need not enjoy the privacy extended to first class matter, the only other status into which this particular parcel could arguably fall would be fourth class. But the statutes concerning classes of mail and the empirical facts make clear that this parcel was not fourth class. It was sealed, and as already pointed out, it was below the minimum weight for fourth class. While it did not bear first class postage but instead carried the postage of the new rates for the "one class of mail," the amount of postage exceeded that for fourth class parcel post. 39 U.S.C.A. Sec. 4556 (App.1972).

The case is reversed with directions to dismiss the indictment.