Border Patrol Justified in Airport Notebook Seizure

MANHATTAN (CN) - U.S. Border Patrol officers were justified in seizing an incriminating notebook from the luggage of a suspected financial fraudster and submitting it as evidence in a case against him, the Second Circuit ruled Monday.

David Levy was returning to the United States from a business trip in Panama when U.S. Customs and Border Protection officers at Miami International Airport detained him and escorted him to a holding area.

At the time, Levy knew he was the target of a criminal investigation into stock manipulation schemes, for which his wife had been indicted a year earlier.

While he was being held, but outside of his presence, the officers inspected Levy's luggage and found a spiral-bound notebook containing 18 pages of notes on various subjects.

After photocopying the pages, the officers returned the notebook and let him go, but the information the pages contained would come back to haunt him.

Levy was indicted in 2011 on charges of securities fraud and conspiracy for his role in what the U.S. Justice Department described as a "pump and dump" stock fraud scheme, a scam that relied on Internet marketing to inflate or deflate penny stock prices at will.

His subsequent conviction and sentence of 108 months in prison came partly on the strength of the notebook at the airport, court documents say.

At Levy's trial, the government relied on the evidence in the book, using the sample of his handwriting to tie him to certain forged documents, and using his business contact information to tie him to illegal trading "and to certain unindicted co-conspirators who participated in the securities fraud scheme," according to the opinion written by U.S. Circuit Judge Raymond Lohier for the three-judge panel.

Levy made a bid to suppress that evidence, arguing the search of his luggage was "non-routine" in that it went "beyond the general searching one expects at a point of entry" and "intrude[d] greatly" on his privacy.

Also, he argued, the border patrol was only authorized to investigate contraband-related crimes, putting his suspected corporate crimes out of their jurisdiction.

But the appeals court struck down these arguments on the same logic a Manhattan federal judge had originally used to reject them.

Whether or not the search of Levy's luggage was a routine is immaterial, Judge Lohier said. Regardless, he said, the officers had reasonable suspicion to search him based solely on the federal government's ongoing investigation of his alleged crimes.

Loheir pointed to Supreme Court precedent, particularly the high court's ruling that reasonable suspicion requires "considerably less" proof than the "preponderance of evidence" required to prove actual wrongdoing or even probable cause.

"Reasonable suspicion requires only 'a particularized and objective basis for suspecting the particular person stopped of criminal activity,' the court wrote in 2014.

The court held that the border patrol's knowledge that Levy was a suspected criminal gave them more than enough basis for reasonable suspicion. "In fact, the level of suspicion was so high that Levy himself was aware of his status as the target of an ongoing federal investigation even prior to arriving at the airport," Loheir wrote.

The court also struck down Levy's argument that U.S. Customs and Border Protection wrongfully stuck its nose into crimes it was not responsible for investigating.

"Official interagency collaboration, even (and perhaps especially) at the border is to be commended, not condemned," Loheir wrote, adding that the Fourth Amendment does not prevent customs officials "from conducting such a search merely because it furthers another federal agency's criminal investigation."

"[Customs and Border Patrol] agents are neither expected nor required to ignore tangible or documentary evidence of a federal crime," Loheir concluded.

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