14-338-cr

United States v. Levy

1 UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

3

August Term, 2014 4

5

(Argued: February 2, 2015 Decided: September 29, 2015) 6

7

Docket No. 14

‐ 338

‐ cr 8

9

_____________________________________ 10

11

UNITED STATES OF AMERICA, 12

13

Appellee

, 14

15

v. 16

17

DAVID LEVY, 18

19

Defendant

‐ Appellant

. * 20

21

_____________________________________ 22

23

Before: 24

25

HALL and 

### LOHIER

, Circuit Judges

, and MEYER, District Judge

. ** 26

27

A United States Customs officer at Miami International Airport 28

examined and photocopied a hardcopy notebook belonging to defendant

‐ 29

appellant David Levy, who had arrived at the airport from a trip abroad. 30

* Although the initial caption on appeal identified the Government as an

“Appellee

‐ Cross

‐ Appellant,” the Government is not pursuing a cross

‐ appeal. The Clerk of Court is therefore respectfully requested to amend

the case caption as set forth above.

** The Honorable Jeffrey Alker Meyer of the United States District Court for

the District of Connecticut, sitting by designation.14-338-cr

United States v. Levy

2 Before trial, Levy moved to suppress the photocopy of the notebook. The 1

United States District Court for the Southern District of New York (Crotty, 2

J. ) denied the motion on the ground that the officer’s search, though not 3

routine, was based on reasonable suspicion of Levy’s participation in 4

criminal activity. Because the District Court properly denied the motion to 5

suppress, we affirm. 6

7

M ARC F ERNICH

, Law Office of Marc Fernich, for 8 Defendant

‐ Appellant. 9

10

H OWARD S. M ASTER (Carrie H. Cohen, Brian A. 11

Jacobs, on the brief ), for Preet Bharara, United 12

States Attorney for the Southern District of New 13

York, New York, NY, for Appellee

. 14

15

LOHIER, Circuit Judge : 16

The principal question presented is whether United States Customs 17

officers at an international airport may lawfully and without a warrant 18

examine and photocopy a document that belongs to a traveler entering the 19

United States if the officers have reasonable suspicion on the basis of 20

information supplied from another federal agency that the traveler is 21

engaged in criminal activity unrelated to contraband, customs duties, 22

immigration, or terrorism. We hold that such a search is lawful under the 23

border search doctrine and that the District Court properly denied the 24

defendant’s motion to suppress. We therefore affirm. 25

We dispose of Levy’s remaining claims on appeal in a separate 26

summary order filed simultaneously with this opinion. 2714-338-cr

United States v. Levy

3 BACKGROUND 1

On December 17, 2011, following a business trip to Panama, David 2

Levy returned to the Miami International Airport to face criminal charges 3

that he expected would be leveled against him. 1 By then, Levy was the 4

target of a criminal investigation into a series of stock manipulation 5

schemes that nearly a year earlier had resulted in the indictment of Levy’s 6

wife. At the airport, United States Customs and Border Protection (CBP) 7

officers detained Levy and escorted him to a holding area without 8

interrogating him. The officers apparently had received information about 9

the investigation of Levy from a Drug Enforcement Administration (DEA) 10

task force, 2 which for reasons not relevant to this appeal was primarily 11

responsible for looking into Levy’s role in the manipulation schemes. 12

Outside of Levy’s presence, the officers inspected Levy’s luggage, focusing 13

on a spiral

‐ bound notebook that contained eighteen pages of Levy’s 14

handwritten notes on various subjects, including travel information, 15

1 Levy’s lawyer had previously contacted federal prosecutors to discuss the

potential charges against Levy.

2 Although the task force appears to have been under the control of the

DEA, it included agents with the Bureau of Immigration and Customs

Enforcement.14-338-cr

United States v. Levy

4 business contacts, bank and trading account data, and limited details of 1

Levy’s personal affairs. One of the CBP officers examined and 2

photocopied the notebook. After about two hours, the CBP officers 3

returned the original notebook and other items to Levy, who was still in 4

the holding area, and allowed him to leave the airport. 5

Less than seventy

‐ two hours later, on December 20, 2011, Levy was 6

indicted on charges of securities fraud and conspiracy to commit securities 7

fraud and wire fraud. In a superseding indictment filed June 28, 2012, 8

Levy was also charged with conspiracy to commit money laundering, as 9

well as other crimes in which the Government claimed he was engaged at 10

the time Levy’s notebook was examined and photocopied. All of the 11

charges arose from Levy’s participation in the stock manipulation 12

schemes. 13

Before trial, Levy moved to suppress the photocopy of the notebook 14

that the CBP officer had inspected. The District Court denied the motion 15

under the border search doctrine. As relevant here, the District Court 16

agreed with Levy that the search of the notebook was a “non

‐ routine” 17

border search because “[t]he close reading and photocopying of an 1814-338-cr

United States v. Levy

5 entrant’s documents goes beyond the general searching one expects at a 1

point of entry” and may “intrude greatly on a person’s privacy.” United 2

States v. Levy, No. 11

‐ cr

‐ 62

‐ PAC, 2013 WL 664712, at *6, *12 (S.D.N.Y. Feb. 3

25, 2013). But it held that the search was still justified under the Fourth 4

Amendment because the CBP officers reasonably suspected that Levy was 5

“engaged in a stock fraud conspiracy.” Id. at *12. 6

In denying the motion, the District Court also rejected Levy’s 7

argument that CBP officers could not search material unless it related to a 8

crime that CBP is authorized by regulation to investigate

– that is, a crime 9

relating to contraband or dutiable merchandise. To the contrary, the 10

District Court determined, none of the cases upon which Levy relied in 11

advancing this argument “limit[ed] the crimes for which customs agents 12

may conduct non

‐ routine searches if they have a reasonable suspicion.” 13

Id. 14

At trial, the parties stipulated that a photocopy of the notebook 15

could be introduced as evidence. The Government relied on the evidence 16

with some effect. Among other things, it used the names listed in the 17

notebook to tie Levy both to various illegal trades and to certain 1814-338-cr

United States v. Levy

6 unindicted co

‐ conspirators who participated in the securities fraud 1

schemes. The Government also referred to the notebook in closing 2

argument, pointing out that Levy’s forgery of certain relevant documents 3

could be proven by the handwriting in the notebook. 4

Levy was convicted of all the counts against him and sentenced 5

principally to a term of 108 months’ imprisonment. This appeal followed. 6

DISCUSSION 7

In evaluating the denial of a motion to suppress evidence, we review 8

the district court’s factual findings for clear error and its conclusions of law 9

de novo. United States v. Foreste, 780 F.3d 518, 523 n.3 (2d Cir. 2015). 10

When the evidence at issue derives from a border search, we recognize the 11

Federal Government’s broad plenary powers to conduct so

‐ called 12

“routine” searches at the border even without “reasonable suspicion that 13

the prospective entrant has committed a crime.” Tabbaa v. Chertoff, 509 14

F.3d 89, 97

‐ 98 (2d Cir. 2007); see United States v. Montoya de Hernandez, 15

473 U.S. 531, 538 (1985) (“Routine searches of the persons and effects of 16

entrants are not subject to any requirement of reasonable suspicion, 17

probable cause, or warrant

. . . .”). It is well established that the Customs 1814-338-cr

United States v. Levy

7 area of an international airport is the functional equivalent of a border for 1

purposes of the border search doctrine. See, e.g., United States v. Irving, 2

452 F.3d 110, 123 (2d Cir. 2006). 3

Had the CBP officer merely skimmed the notebook and returned it 4

to Levy without copying it, we have no doubt that the inspection would 5

have been routine. Cf. United States v. Arnold, 533 F.3d 1003, 1009 (9th 6

Cir. 2008) (holding border search of an electronic device permissible even 7

without reasonable suspicion where “CBP officers simply had [the 8

traveler] boot [the laptop] up, and looked at what [he] had inside”). 9

Whether searching and copying the notebook here constitutes a “routine” 10

border search that could be conducted without reasonable suspicion is 11

somewhat more debatable. 3 But for now we avoid resolving that question 12

3 We question whether a Customs official’s inspection, copying, and

subsequent return of a document in a traveler’s luggage at the border can

be so “intrusive” that it becomes a “non

‐ routine” search requiring

reasonable suspicion. Like the Supreme Court, see United States v. Flores

‐

Montano, 541 U.S. 149, 152 (2004), we have suggested that the label “non

‐

routine” should generally be reserved for intrusive border searches of the

person (such as body

‐ cavity searches or strip searches), not belongings, see

United States v. Charleus, 871 F.2d 265, 267 (2d Cir. 1989); see also United

States v. Irving, 452 F.3d 110, 123

‐ 24 (2d Cir. 2006) (explaining that routine

searches may include searches of a person’s luggage, personal belongings,

outer clothing, and the contents of a purse, pockets, and shoes, but14-338-cr

United States v. Levy

8 because the record of the Government’s criminal investigation of Levy 1

prior to the inspection of his notebook supports the District Court’s ruling 2

that the inspection was justified by reasonable suspicion. 3

The Supreme Court has instructed that “the level of suspicion the 4

[reasonable suspicion] standard requires is considerably less than proof of 5

wrongdoing by a preponderance of the evidence, and obviously less than 6

is necessary for probable cause.” Navarette v. California, 134 S. Ct. 1683, 7

1687 (2014) (quotation marks omitted). Reasonable suspicion requires only 8

“a particularized and objective basis for suspecting the particular person 9

stopped of criminal activity.” Id. (quotation marks omitted). 10

The CBP officer had such a basis in this case. Although Levy 11

disputes this conclusion, a review of the allegations in the initial 12

underlying indictment against Levy (filed within days of the search) and 13

the allegations in the subsequent, superseding indictment confirm that the 14

search was justified by the CBP officer’s reasonable suspicion of Levy’s 15

declining to decide whether searches of computer diskettes found within

luggage were routine or non

‐ routine); United States v. Grotke, 702 F.2d 49,

51

‐ 52 (2d Cir. 1983) (routine search includes search of luggage and

personal belongings, among other items).14-338-cr

United States v. Levy

9 ongoing criminal participation in securities fraud schemes. In fact, the 1

level of suspicion was so high that Levy himself was aware of his status as 2

a target of an ongoing federal investigation even prior to arriving at the 3

airport, and his lawyer previously had contacted federal prosecutors about 4

the investigation. 5

We also conclude that the CBP officer was entitled to rely on 6

information provided by the DEA task force to justify the border search in 7

this case. Official interagency collaboration, even (and perhaps especially) 8

at the border, is to be commended, not condemned. Whether a Customs 9

official’s reasonable suspicion arises entirely from her own investigation or 10

is prompted by another federal agency is irrelevant to the validity of a 11

border search, which we have held “does not depend on whether it is 12

prompted by a criminal investigative motive.” United States v. Irving, 452 13

F.3d 110, 123 (2d Cir. 2006); see United States v. Schoor, 597 F.2d 1303, 1306 14

(9th Cir. 1979) (Kennedy, J.) (“That the search was made at the request of 15

the DEA officers does not detract from its legitimacy. Suspicion of 16

customs officials is alone sufficient justification for a border search.”). We 17

note, for example, that DEA or Federal Bureau of Investigation agents 1814-338-cr

United States v. Levy

10 “frequently assist customs officials in the execution of border searches.” 1

Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 232 (2008) (Kennedy, J., 2

dissenting) (citing United States v. Gurr, 471 F.3d 144, 147

‐ 49 (D.C. Cir. 3

2006); United States v. Boumelhem, 339 F.3d 414, 424 (6th Cir. 2003); 4

Formula One Motors, Ltd. v. United States, 777 F.2d 822, 824 (2d Cir. 5

1985)). We see no constitutional reason to prevent these and other federal 6

law enforcement agents from also supplying information to Customs 7

officials in aid of a border search. Nor are Customs officials prevented by 8

the Fourth Amendment from conducting such a search merely because it 9

furthers another federal agency’s criminal investigation. 10

Levy argues that border searches conducted by the CBP, even at the 11

prompting of another federal agency, should at least be confined to crimes 12

that a statute or regulation specifically authorizes CBP to investigate. We 13

recognize that CBP officers focus primarily on contraband, dutiable 14

merchandise, immigration fraud, and terrorism. See United States v. 15

Flores

‐ Montano, 541 U.S. 149, 153 (2004); Tabbaa, 509 F.3d at 93. But (like 16

other federal law enforcement officers) CBP officers are neither expected 17

nor required to ignore tangible or documentary evidence of a federal 1814-338-cr

United States v. Levy

11 crime. They have the authority to search and review a traveler’s 1

documents and other items at the border when they reasonably suspect 2

that the traveler is engaged in criminal activity, even if the crime falls 3

outside the primary scope of their official duties. United States v. Gurr, 4

the only other circuit court decision to have resolved this specific issue, is 5

in accord. In Gurr, the D.C. Circuit explained: 6

We recognize that the primary purpose of a border search is to 7

seize contraband property unlawfully imported or brought 8

into the United States. However, where customs officers are 9

authorized to search for material subject to duty or otherwise 10

introduced illegally into the United States and they discover 11

the instrumentalities or evidence of crimes, they may seize the 12

same. 13

14

471 F.3d at 149 (quoting Schoor, 597 F.2d at 1306); cf. United States v. 15

Seljan, 547 F.3d 993, 1004 (9th Cir. 2008) (en banc) (“Seljan has not cited 16

authority under the Fourth Amendment that required the agents to 17

disregard evidence of other unlawful activity, even if the unlawfulness 18

had nothing to do with transporting unreported monetary instruments.”). 19

Because their conduct was fully supported by reasonable suspicion 20

that Levy was engaged in a financial crime, the CBP officer in this case was 21

entitled to inspect and copy the notebook as evidence of that crime. 2214-338-cr

United States v. Levy

12 Neither our case law nor the applicable regulations relating to CBP officers 1

or border searches is to the contrary, and the District Court correctly 2

denied Levy’s motion to suppress the photocopy. 3

CONCLUSION 4

For the foregoing reasons and those set forth in the accompanying 5

summary order, we AFFIRM the judgment of conviction of the District 6

Court. 7