United States v. Michael Borostowski ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3811
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL J. BOROSTOWSKI,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:12-cr-10150-JES-JAG-1— James E. Shadid, Judge.
ARGUED SEPTEMBER 17, 2014 — DECIDED DECEMBER 31, 2014
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Michael J. Borostowski pled guilty
to an indictment charging him with one count of receiving
child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A)
and 2252A(b)(1); five counts of distributing child pornography
in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1);
and three counts of possessing child pornography in violation
of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). Borostowski
2 No. 13-3811
reserved his right to appeal the district court’s denial of his
motions to suppress. The district court sentenced him to 293
months of imprisonment, followed by a lifetime of supervised
release. On appeal, Borostowski challenges the district court’s
conclusion that he was not in custody when officers questioned
him on the day a search warrant was executed at his home, as
well as the court’s determination that a hard drive seized from
his mother’s car was within the scope of the search warrant. He
also objects to his sentence. We reverse the district court’s
judgment in part, affirm in part, and remand for proceedings
consistent with this opinion.
I.
In June 2012, an informant allowed an agent of the Federal
Bureau of Investigation (“FBI”) to assume his online identity.
The agent then used that identity to investigate an individual
who had been corresponding with the informant using the
email address mikeborostowski@yahoo.com. The person using
that email address had offered to provide child pornography
videos to the informant in exchange for a web camera session
with a child. The undercover FBI agent subsequently received
child pornography from the user of that email account in June
and August 2012. The FBI then obtained a warrant directed to
Yahoo! to search that email account. The search revealed
exchanges in which the user of the account claimed to keep
child pornography on an external hard drive. Michael
Borostowski, the defendant here, had a prior conviction related
to child pornography. Using information gleaned from that
investigation, an agent applied for a warrant to search
Borostowski’s person, his 1993 red Chevrolet truck and the
premises where he lived with his parents, Dollie and Joseph,
No. 13-3811 3
and his sister, Ramona. The resulting warrant described the
place to be searched:
The premises at 412 Opper, Granville, Putnam County,
Illinois 61326 which is a two-story partial brick, single family
residence with a two-stall attached garage. The premises shall
include all rooms, attic, garage space, and other parts therein
of said residence and any outbuilding or shed on said pre-
mises.
The warrant allowed the agents to search the premises
described and “any magnetic, optical or digital media … on
said person or in said property,” and to seize “in any format
and medium, all originals, computer files, copies and negatives
of child pornography.” The agent who prepared the warrant
application was aware that Dollie owned a Chevrolet Blazer
and that Joseph owned a teal-colored truck. But the agent did
not specifically list those vehicles in the warrant application.
At approximately 6:05 a.m. on November 15, 2012, thirteen
law enforcement agents executed the search warrant at the
home where Borostowski lived with his parents and sister.
Additional officers from local law enforcement assisted in
traffic and perimeter security but did not enter the house. The
initial “entry team” was comprised of seven agents. One agent
carried a ballistic shield and all seven agents were armed with
handguns. The entry team encountered Borostowski’s sister,
Ramona, on the front porch. The lead agent identified himself
and asked Ramona who was in the house. Ramona told the
agent that her brother and parents were asleep inside the
house. An agent remained with Ramona during the execution
of the warrant, preventing her, for a time, from leaving the
4 No. 13-3811
premises. Agent Matthew Hoffman knocked on the door and
announced “FBI search warrant.” Borostowski, who had been
sleeping on the living room couch, answered the door. Agent
Hoffman directed Borostowski to place his hands on his head.
Agent Hoffman then pulled him by the arm out of the house
and handed him off to Agent Jason Nixon. Agent Nixon took
Borostowski by the arm, escorted him onto the lawn and
handcuffed him. A barefoot Borostowski, who was wearing
only sweatpants and a t-shirt, was forced to remain outside for
twenty to twenty-five minutes in roughly forty degree temper-
atures while the entry team secured the home. Agent Nixon
testified that he stood next to Borostowski as they waited,
keeping his hand on Borostowski’s handcuffs most of the time.
At some point, Borostowski was allowed to move off of the wet
grass onto the driveway, and some time after that, Agent
Nixon moved his handcuffs from the back to the front so that
Borostowski could sit near the front door of the house. While
they waited outside, Agent Nixon searched Borostowski.
Ramona later testified that when her brother was led out of
the house, he yelled out to her to get him an attorney. All of the
agents who testified stated that they did not hear Borostowski
make this request of his sister, including the agent who led
Borostowski into the yard in handcuffs. Yet the district court
apparently credited Ramona’s testimony, finding that
Borostowski’s request to his sister demonstrated that “he was
not a meek individual likely to be pushed around or feel
threatened.”
In the meantime, the entry team secured the home. An
agent found Joseph sleeping in a downstairs room and
required him to remain in place. Another agent encountered
No. 13-3811 5
Dollie coming out of her room upstairs in her pajamas. That
agent brought Dollie downstairs and placed her apart from her
husband in order to question Borostowski’s parents separately.
At some point, another sister approached the house and was
prevented from entering by agents outside the home.
After the home was secured, Agents Nixon and Gregory
Spencer brought Borostowski back into the home and led him
up to Ramona’s bedroom on the second floor. Once there, they
removed his handcuffs. The bedroom, which was approxi-
mately 13'6" by 9'9", contained a double- or queen-sized bed,
a dresser and a nightstand. Borostowski sat on a corner of the
bed. Agent Nixon alternated between standing and sitting on
the floor. Agent Spencer stood between Borostowski and the
door. The room was small enough and crowded enough that
the agents were within arms’ reach of Borostowski at all times.
Agent Spencer testified that the door was open most of the
time. Agent Nixon testified that it was closed. The district court
did not resolve the inconsistency. Although the agents were
armed, their weapons were holstered at that point. For the next
three hours, as eleven other law enforcement personnel
searched the home and questioned Borostowski’s parents and
sister, Agents Spencer and Nixon interrogated Borostowski in
Ramona’s bedroom.
Agent Spencer took the primary role in the interrogation.
The agents introduced themselves, showed Borostowski their
credentials and told him they were at the home to execute a
search warrant. Agent Spencer told Borostowski that they were
searching for electronic media, that he was not under arrest,
and that they wished to ask him questions about his activities
and items from the house. Using a standard form, Agent
6 No. 13-3811
Spencer then read Borostowski his Miranda rights and asked if
he understood them. Borostowski indicated that he did
understand. Agent Spencer then read the consent portion of
the form to Borostowski and asked if he was willing to answer
questions. Borostowski replied that he wanted to cooperate
and added, “But I think I should have an attorney present.”
Agent Spencer told Borostowski that he was “a bit unclear of
exactly what you mean and what you want,” and suggested
that they discuss this further. Borostowski then told the agent
that he was “torn and conflicted,” that he wanted to cooperate
but that he was also concerned that what he said would be
used against him. Agent Spencer asked if Borostowski had an
attorney in mind and he replied that he did not. Agent Spencer
asked who had represented Borostowski when he was previ-
ously prosecuted for child pornography offenses. Borostowski
then named Assistant Federal Public Defender Robert
Alvarado, and explained that he had pled guilty in that case
and had served time in prison. The agents did not stop the
questioning at that time and did not contact Attorney Alvarado
because, as Agent Nixon candidly acknowledged, they wanted
to continue the interview without a lawyer present. Instead,
Agent Spencer told Borostowski:
One of the things you can do, I said, is you can start
answering questions now. If you choose not to
answer a certain question, you can say I don’t want
to answer that question. You can stop answering
questions at any time during the interview, and, you
know, if you choose during the interview to have an
attorney, you can do that also.
No. 13-3811 7
Tr. at 196. Agent Spencer also told Borostowski that he
understood his concerns, that he had “some things [he] had to
show him to clear up,” and that he would like Borostowski’s
cooperation. At that, Borostowski agreed to be interviewed and
signed the consent portion of the Miranda form. From the
introductions to the signing of the consent form, approximately
fourteen minutes had elapsed.
For the next two hours, the questioning proceeded uninter-
rupted and in a conversational tone. During that time,
Borostowski said numerous incriminating things. He told the
agents that he owned an external hard drive but claimed to
have lost it, and that he had a thumb drive as well. He admit-
ted to trading child pornography over the internet. He identi-
fied pictures and chat sessions and commented on them as the
agents made a list. At some point, he asked to use the bath-
room. Agent Nixon escorted him down the hallway to the
bathroom and then waited outside the door with two other
agents until Borostowski was finished. Agent Nixon then
escorted him back to Ramona’s bedroom. At approximately
8:00 a.m., Agents Nixon and Spencer gave Borostowski a form
titled “Written Statement” and asked him if he would fill it out.
The form contained questions about child pornography and
computer-related issues. Borostowski began to fill out the form
and sometimes paused to ask a clarifying question before
resuming.
While the questioning progressed, the agents searching the
house were unable to locate the hard drive that Borostowski
8 No. 13-3811
mentioned in his emails. Agent Amanda Hoffman1 decided to
ask Dollie about the hard drive. Dollie did not know what a
hard drive was or what one looked like. The agent described
the device to Dollie, who indicated that she had seen some-
thing like that in her car, the Chevrolet Blazer parked in the
driveway. Dollie confirmed that Borostowski had used her car
for “quite a while.” Agent Amanda Hoffman explained to
Dollie that they were searching for evidence of child pornogra-
phy, and she asked if Dollie would consent to a search of the
Blazer for items that might contain child pornography. Dollie
agreed to allow the search and signed a consent form. An agent
then searched the Blazer and recovered a hard drive from the
center console area. The hard drive was brought into the house
where a forensic examiner briefly searched the device to
determine if it contained child pornography. After confirming
that it did, the examiner handed off the hard drive to Agent
Spencer, who had taken a break from questioning Borostowski.
At approximately 8:30 a.m., Agent Spencer returned to
Ramona’s bedroom and wordlessly showed the hard drive to
Borostowski. Borostowski looked at it for a few seconds and
then told the agents that he had found it on the road. Agent
Spencer challenged this story, reminding Borostowski that he
had earlier denied owning a hard drive and pointing out that
there were no scratches or marks on the drive as would be
expected for an object found on the road. Borostowski then
indicated that he found the drive in a Walmart parking lot.
1
There were two agents with the surname “Hoffman” on the scene. We
will refer to Agent Matthew Hoffman as “Agent Hoffman,” and to Agent
Amanda Hoffman by her full name.
No. 13-3811 9
Agent Spencer asked if videos from Walmart would show him
purchasing the hard drive at Walmart. At first, Borostowski
conceded that they would show him making the purchase but
then clarified that videos would simply show him in the
Walmart parking lot with the drive. When Agent Spencer said,
“I don’t believe your story. You know, I believe you purchased
this,” Borostowski replied, “I probably should have an
attorney.”
Agent Spencer considered this statement equivocal based
on the use of the word “probably” and the context in which the
statement was made. So instead of halting the interview and
alerting Attorney Alvarado, the agents continued the question-
ing. Agent Spencer again sought to “clarify” Borostowski’s
request, inviting Borostowski to discuss what he meant. Agent
Spencer reminded Borostowski that they had discussed
attorneys earlier, that Borostowski had been cooperating
throughout the interview, that the agents had previously been
unclear on Borostowski’s intentions at the earlier mention of an
attorney and that the agents needed to clarify what
Borostowski wanted before they proceeded. Agent Spencer
then asked directly, “Do you agree to go on at this point and
answer questions without an attorney?” Borostowski said,
“Yes,” and then admitted having purchased the hard drive at
Walmart. He also admitted that the drive contained child
pornography and that he stored it there in order to keep it off
of his laptop computer. The questioning continued for approxi-
mately a half hour past that point.
As the agents were concluding the questioning, they asked
Borostowski for the “Written Statement” he had been filling
out during the questioning. Borostowski said he was going to
10 No. 13-3811
stop filling it out and wanted to keep it. He placed it in a file
folder and set it aside, declining to give it to the agents.2 Agent
Spencer also asked Borostowski if he was willing to submit to
a polygraph examination and Borostowski agreed to do so. The
agents explained that the equipment and polygraph examiner
were in Peoria. Borostowski’s home was in Granville, Illinois,
approximately 52 miles away. The agents explained to
Borostowski that they would transport him to the FBI office in
Peoria in an FBI vehicle and that standard procedure required
them to restrain occupants. Prior to leaving the house for
Peoria, Borostowski asked if he could put on shoes and a
jacket. The agents allowed him to do so. Two agents then
restrained Borostowski by placing him in handcuffs and leg
shackles before putting him in the FBI car. When Borostowski
asked whether the agents would bring him home again, they
were “non-committal” in answering him, telling him
“[s]omething to the effect of we will make sure that you’re not
stranded or we will make sure that you will get where you
need to go.” Tr. at 126. The restraints were removed at the
Peoria FBI office, and Borostowski was taken into an interview
room for the polygraph examination where he remained “for
a number of hours” behind a closed door with the polygraph
examiner. Tr. at 128-29. After the examination, the agents
provided Borostowski with lunch. Sometime after that, they
received confirmation from the special agent in charge that
they should arrest Borostowski. At that point, they told
2
Agent Amanda Hoffman later returned to the house and retrieved the
partially completed form from Ramona’s bedroom. At that time, Dollie also
handed over a thumb drive that she found in the home.
No. 13-3811 11
Borostowski that he was under arrest, they again handcuffed
and shackled him, and then transported him to jail.
Borostowski moved to suppress the statements he made to
the agents who questioned him that day on the grounds that
the agents violated his Miranda rights when they continued to
question him after he twice (and perhaps three times) invoked
his right to counsel. He also moved to suppress the hard drive
found in his mother’s car, contending that it was not within the
scope of the search warrant and that his mother’s consent to
search the car did not extend to the contents of the hard drive.
The district court denied both motions. The court found that
Borostowski was not in custody during the questioning that
occurred at his home, and thus was not entitled to the protec-
tions of Miranda. The court therefore declined to consider
whether Borostowski’s statements regarding an attorney were
unequivocal invocations of his right to counsel. As for the hard
drive, the court found that Dollie’s car was within the scope of
the warrant. The court also noted that the hard drive was
admissible under the independent source doctrine because the
agents sought and received a second warrant after seizing the
hard drive, asking a magistrate to authorize a search of the
contents. Borostowski then pled guilty but retained the right to
appeal the court’s rulings on the motions to suppress.
II.
On appeal, Borostowski argues that the district court erred
when it concluded that he was not in custody for Fifth Amend-
ment purposes. He also contends that the court should have
determined that the search of the external hard drive was not
authorized by either of the search warrants issued in the case.
12 No. 13-3811
Finally, he maintains that the court relied on incorrect informa-
tion in setting his sentence.
A.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court held that a person who has been “taken into custody or
otherwise deprived of his freedom of action in any significant
way” must first “be warned that he has a right to remain silent,
that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an
attorney, either retained or appointed.” 384 U.S. at 444. See also
Stansbury v. California, 511 U.S. 318, 322 (1994). “Statements
elicited in noncompliance with this rule may not be admitted
for certain purposes in a criminal trial.” Stansbury, 511 U.S. at
322. In this instance, it is undisputed that the officers gave
Borostowski an appropriate Miranda warning before question-
ing him. But immediately after hearing that warning,
Borostowski stated, “But I think I should have an attorney
present.” When an individual in custody “states that he wants
an attorney, the interrogation must cease until an attorney is
present.” Miranda, 384 U.S. at 474; United States v. Wysinger,
683 F.3d 784. See also United States v. Lee, 413 F.3d 622, 626
(7th Cir. 2005) (“I think I should call my lawyer,” “Can I talk to
a lawyer?” and “Can I have a lawyer?” are all unequivocal
invocations of the right to counsel requiring police officers to
halt interrogations). The district court declined to consider
whether Borostowski’s statement was an unequivocal invoca-
tion of his right to counsel. Instead, the court concluded that
Borostowski was not “in custody” for Miranda purposes and
therefore had no right to have an attorney present during
No. 13-3811 13
questioning. It is that finding that Borostowski challenges on
appeal.
We review the district court’s findings of historical fact for
clear error, but the ultimate “in custody” determination for
Miranda purposes is a mixed question of law and fact qualify-
ing for independent review. Thompson v. Keohane, 516 U.S. 99,
112-13 (1995); United States v. Ambrose, 668 F.3d 943, 955
(7th Cir. 2012); United States v. Pillado, 656 F.3d 754, 770
(7th Cir. 2011). See also United States v. Slaight, 620 F.3d 816, 821
(7th Cir. 2010) (appellate review of a judge’s finding that an
interrogation was not custodial is plenary). In determining
whether a person is in custody, our first step is to ascertain
whether, in light of the objective circumstances of the interro-
gation, a reasonable person would have felt that he or she was
not at liberty to terminate the interrogation and leave. Howes v.
Fields, 132 S. Ct. 1181, 1189 (2012). See also Stansbury, 511 U.S.
at 322-23 (the initial determination of custody depends on the
objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers
or the person being questioned); Thompson, 516 U.S. at 112 (“in
custody” analysis requires consideration of the circumstances
surrounding the interrogation and whether, in light of those
circumstances, a reasonable person would have felt he or she
was not at liberty to terminate the interrogation and leave);
Yarborough v. Alvarado, 541 U.S. 652, 662-63 (2004) (custody
must be determined based on how a reasonable person in the
suspect's situation would perceive his circumstances). Relevant
factors include the location of the questioning, its duration,
statements made during the interrogation, the presence or
absence of physical restraints during the questioning, and the
14 No. 13-3811
release of the interviewee at the end of questioning. Howes,
132 S. Ct. at 1189. See also Ambrose, 668 F.3d at 956 (in determin-
ing whether a person is in custody, a court should consider,
among other things, whether the encounter occurred in a
public place, whether the suspect consented to speak with
officers, whether the officers informed the suspect that he was
not under arrest, whether the interviewee was moved to
another area, whether there was a threatening presence of
several officers and a display of weapons or physical force,
whether the officers deprived the suspect of documents needed
to depart and whether the officers’ tone was such that their
requests were likely to be obeyed).
The district court found that the agents arrived at
Borostowski’s home in a show of force. He was handcuffed
and taken outside where an agent remained at his side for
approximately twenty-five minutes. While still handcuffed,
Borostowski was then led back into the home and taken to an
upstairs bedroom by two armed federal agents. The district
court determined that, during that time, Borostowski was “not
free to leave.” The court noted that Borostowski “may have felt
confined” but he was in familiar surroundings in his own
home, the handcuffs were removed once he was in Ramona’s
bedroom, he was told he was not under arrest or in custody,
the questioning was never hostile or combative, and he had
expressed a willingness to cooperate. Acknowledging that a
suspect’s subjective state of mind is irrelevant to the objective
standard applied, the court nevertheless also noted that
Borostowski had yelled to his sister to get him an attorney,
leading the court to conclude that he was “not a meek individ-
ual likely to be pushed around or feel threatened.” On balance,
No. 13-3811 15
the court concluded, Borostowski was not in custody. The
court therefore declined to “address the issue of his requests
for counsel.”
We find no clear error in the court’s findings of historical
fact but the court’s recitation of the circumstances surrounding
the interrogation is incomplete. We glean a broader picture
from the undisputed testimony of the government’s own
witnesses. We begin with whether there was a threatening
presence of several officers and a display of force, and we
accept the district court’s finding that there was a show of
force. The arrival of thirteen law enforcement officers in a
single family home could hardly be described otherwise. No
one disputes that additional officers outside the home pro-
vided traffic control and perimeter security. The initial entry
team consisted of seven armed officers, including one carrying
a ballistic shield. “Custody for Miranda purposes is a state of
mind. When police create a situation in which a suspect
reasonably does not believe that he is free to escape their
clutches, he is in custody[.]” Slaight, 620 F.3d at 820. In Slaight,
nine officers entered a house with a battering ram, found the
defendant in bed and ordered him, in an authoritative tone,
with guns pointed at him, to put his hands up. We character-
ized this as an “overwhelming armed force in the small house
[that] could not have failed to intimidate the occupants.”
620 F.3d at 820. In this case, of course, Borostowski opened the
door when the officers knocked and so there was no forced
entry here, but as in Slaight, a large number of armed officers
roused Borostowski from where he slept, authoritatively
ordered him to place his hands over his head and then physi-
cally pulled him from the house and restrained him. A total of
16 No. 13-3811
thirteen officers then entered the house for the search and
questioning. They separated the home’s other occupants and
prevented family members from entering or leaving the home
for a period of time. This overwhelming display of force inside
a single family home would have led a reasonable person to
believe that he was not free to leave. See also United States v.
Mittel-Carey, 493 F.3d 36, 38-40 (1st Cir. 2007) (finding that the
presence of eight officers in the home would contribute to a
finding that a person was in custody); United States v.
Craighead, 539 F.3d 1073, 1084-85 (9th Cir. 2008) (finding that
the presence of eight officers from three different law enforce-
ment agencies in a suspect’s home would lead a reasonable
person to feel that his home was dominated by law enforce-
ment agents).
The next factor is the presence or absence of physical
restraints. On encountering Borostowski at the door of the
home, the agents took him by the arm and pulled him out of
the house. Agent Nixon then handcuffed him and held him in
the front yard for approximately twenty-five minutes, keeping
a hand on the handcuffs. Two agents then led a still-
handcuffed Borostowski back into the house to a bedroom on
the second floor. Once there, the handcuffs were removed but
an armed federal agent stood between Borostowski and the
door. Borostowski remained within arm’s reach of the agents
for the next three hours as they questioned him. He was not
allowed to leave the bedroom and walk through his own home
unaccompanied but was followed to the nearby bathroom and
had to ask for shoes and a jacket before the agents shackled his
hands and legs and drove him to FBI headquarters for poly-
graph testing. The use of restraints for twenty-five minutes,
No. 13-3811 17
followed by confinement in a small room with an armed officer
blocking the door for the next three hours, followed by the use
of handcuffs and leg shackles would lead a reasonable person
to believe that he was not free to leave. Howes, 132 S. Ct. at 1189(noting that the use of restraints contributes to a suspect’s
sense that his freedom of movement has been restrained).
Similarly, the accompaniment by officers as Borostowski
moved through his own home would lead a reasonable person
to believe that he was in custody. Mittel-Carey, 493 F.3d at 40(noting that accompanying the defendant to the bathroom in
his own home indicated a level of control exercised by the
officers that favored a finding of custody).
The district court did not resolve the dispute over whether
the door to the small, crowded bedroom was open or closed
during the three hour interrogation. One agent testified that it
was kept open; the other testified that it was closed most of the
time. The government seeks the benefit of both officers’
testimony, arguing that Borostowski could not have felt
confined with an open door and also that he could not have
been intimidated by the eleven other officers roaming the
house because he would not have been aware of them behind
the closed door. One way or the other, though, these circum-
stances weigh in favor of finding that Borostowski was in
custody: either the door was open and Borostowski was thus
aware of the large number of officers moving through the
house, or the door was closed and he was confined to a small,
crowded room with two armed agents, one of whom blocked
a closed door. In either case, a reasonable person would not
have felt free to leave.
18 No. 13-3811
Turning to the remaining factors, it cannot be said that
Borostowski voluntarily agreed to meet with law enforcement
agents. Yarborough, 541 U.S. at 661 (where defendant came
voluntarily to the police station, was immediately informed
that he was not under arrest, was interviewed for half an hour
and then left the police station without hindrance, it is clear
that he was not in custody or otherwise deprived of his
freedom of action in any significant way); California v. Beheler,
463 U.S. 1121, 1125 (1983) (defendant’s voluntary initiation of
communication with police weighs against a finding of
custody); Ambrose, 668 F.3d at 956 (procuring a suspect’s
presence at an interview through the use of a ruse weighs
against voluntariness and in favor of finding that he was in
custody). Although Borostowski was voluntarily in his home
when the agents arrived, he was then removed from the home,
handcuffed and marched to the interview room still in hand-
cuffs. The encounter could not reasonably be described as
voluntary, nor would a reasonable person have experienced it
as voluntary.
Nor was Borostowski released at the end of the lengthy
encounter. Howes, 132 S. Ct. at 1189; Beheler, 463 U.S. at 1122-23.
In fact, his interaction with the agents became more and more
restrictive as the day went on, culminating in his formal arrest
at FBI headquarters. The day began with handcuffs, continued
with a constant personal guard of one or two agents, moved
into a small room where an agent stood between Borostowski
and the door, proceeded to handcuffs and leg shackles on a trip
to FBI headquarters, and ended with formal arrest, again with
handcuffs and leg shackles. The at-home portion of the
interview lasted approximately two and a half or three hours
No. 13-3811 19
but then continued with a polygraph examination that was
described by one agent as lasting hours. The extended duration
of the encounter also weighs in favor of a finding of custody.
Howes, 132 S. Ct. at 1189. Moreover, once the external hard
drive was discovered, the tone of the questioning changed,
with Agent Spencer telling Borostowski that he did not believe
Borostowski’s story about finding the hard drive on the road
or in a parking lot. A reasonable person in Borostowski’s
circumstances would not have felt free to end the interview
and leave at any stage of the proceedings.
Weighed against the strong police presence, the use of
handcuffs and a de facto two-man guard as restraints, the
extended length of the interrogation, the confinement to a
small crowded room, as well as the other factors we have
noted, there are two facts favoring a finding that Borostowski
was not in custody. First, Borostowski was told that he was not
under arrest or in custody. Second, the tone of the questioning
never became hostile or combative. Generally, those facts
would support a finding that a reasonable person would feel
free to leave. But when combined with the other circumstances,
these factors are not determinative. “[B]eing polite to a suspect
questioned in a police station and telling him repeatedly that
he's free to end the questioning and leave do not create a safe
harbor for police who would prefer to give Miranda warnings
after the suspect has confessed rather than before.” Slaight,
620 F.3d at 821. See also United States v. Craighead, 539 F.3d 1073,
1088 (9th Cir. 2008) (the mere recitation of the statement that
the suspect is free to leave or terminate the interview does not
render an interrogation non-custodial per se, but the court must
consider the delivery of these statements within the context of
20 No. 13-3811
the scene as a whole); United States v. Colonna, 511 F.3d 431,
435-36 (4th Cir. 2007) (the mere utterance of the words “you
are not under arrest” does not end the “in custody” analysis
but rather the words must be taken in the larger context of the
totality of the circumstances).
As for the setting, Borostowski was in familiar surround-
ings, in his sister’s bedroom, in his parents’ home. That fact
generally weighs in favor of finding that he was not in custody.
But he was forcefully separated from family members, and
although he was in his own home, he was not allowed to move
through the house without one or more agents at his side, and
was handcuffed when he was first led back into the house.
Orozco v. Texas, 394 U.S. 324, 325-27, 330 (1969) (finding
custody where four officers entered the suspect's bedroom and
behaved as though he was “not free to go where he pleased but
was under arrest” even though they did not actually handcuff
or physically subdue the suspect, and even though he was in
familiar surroundings and the interrogation was not pro-
longed); Sprosty v. Buchler, 79 F.3d 635, 641-42 (7th Cir. 1996)
(more important than the familiarity of the surroundings
where the suspect was being held is the degree to which the
police dominated the scene). See also Craighead, 539 F.3d at 1085(when law enforcement agents restrain the ability of a suspect
to move with physical restraints or through threats or intimida-
tion, a suspect may reasonably feel he is subject to police
domination within his own home and thus not free to leave or
terminate the interrogation); Mittel-Carey, 493 F.3d at 40 (where
agents told the defendant where to sit within his own home,
physically separated him from his girlfriend, escorted him on
the three occasions when he was permitted to move, including
No. 13-3811 21
during a trip to the bathroom, the level of physical control the
agents exercised over the defendant weighed heavily in favor
of finding custody, despite the fact that the control was
exercised inside defendant's home).
On balance, we cannot agree with the district court that a
reasonable person in these circumstances would have felt free
to end the encounter and leave at any point throughout the
day. We vacate the court’s finding and remand so that the
court may consider in the first instance whether and when
Borostowski unequivocally invoked his right to counsel. If the
court concludes that Borostowski did invoke his right to
counsel, then any statements that Borostowski made from that
point forward would be excluded from trial.
B.
Borostowski also challenges the district court’s ruling that
the seizure of the external hard drive recovered from his
mother’s car and the subsequent search of the contents were
authorized under the Fourth Amendment. In considering a
district court's decision on a motion to suppress, we review
findings of fact for clear error and questions of law de novo.
United States v. Peters, 743 F.3d 1113, 1116 (7th Cir. 2014);
Wysinger, 683 F.3d at 793; United States v. Garcia–Garcia,
633 F.3d 608, 612 (7th Cir. 2011).
There are no real disputes abut the facts. As Borostowski
concedes, the agents here obtained a warrant to search
Borostowski’s person, the premises at Opper Avenue, his 1993
red Chevrolet pickup truck, and any magnetic, optical or
digital media “on said person or in said premises.” After the
agents initially failed to find the hard drive in the house, Agent
22 No. 13-3811
Amanda Hoffman questioned Dollie, who indicated she had
seen an object in her car matching the agent’s description of the
device. Dollie’s car was not listed in the warrant and so the
agent then asked for and received consent from Dollie to
search her Chevrolet Blazer, which was parked on the pre-
mises, in the home’s driveway. The hard drive was discovered
in the front console area of Dollie’s car. The agents then
conducted a preview search of the hard drive to determine
whether it contained child pornography, and they discovered
an extensive collection on the device.
In assessing the lawfulness of this search, the district court
noted that Dollie consented to the search of the Blazer, that the
Blazer was parked on the premises, and that the warrant
authorized a search of the premises, including any and all
containers that might contain digital media. Citing our opinion
in United States v. Percival, 756 F.2d 600, 612 (7th Cir. 1985), the
court noted that a warrant which authorizes the search of a
premises may permit the search of vehicles owned or con-
trolled by the owner of the property which are located on the
property. In Percival, the court reasoned, we found lawful a
search of a vehicle parked in an attached garage even though
the warrant authorized only a search of the house and attached
garage. The district court concluded that, under Percival, the
Blazer came within the scope of the warrant and the search of
the hard drive was therefore lawful. In the alternative, the
court noted that the government sought a second warrant for
the contents of the hard drive after conducting the preview
search that revealed the device contained child pornography.
The court found that, under the independent source doctrine,
No. 13-3811 23
the second warrant, untainted by the original search, autho-
rized the search of the contents of the hard drive.
On appeal, Borostowski contends that because the Blazer
was not listed in the warrant, and because Dollie had no
authority to consent to a search of the contents of the hard
drive, that search was unreasonable under the Fourth Amend-
ment. He also objects to the court’s application of the inde-
pendent source doctrine. We conclude that the search of the
hard drive was lawful based on the combination of the first
warrant and Dollie’s consent to search the Blazer. We find no
need to extend the reasoning of Percival to the facts here and
we also decline to address the application of the independent
source doctrine in these circumstances.
The agents included in the first warrant application the
entire premises where Borostowski lived. The warrant autho-
rized a search not only of the premises but also of the contents
of any electronic media found on the premises. Dollie’s car,
which was not included in the warrant, was essentially a
closed container on the premises; the agents knew that the
Chevrolet Blazer belonged to someone other than the target of
the warrant and, initially, they had no reason to connect it to
any criminal activity. Under the Fourth Amendment, “a search
conducted without a warrant issued upon probable cause is
‘per se unreasonable … subject only to a few specifically
established and well-delineated exceptions.’” Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United
States, 389 U.S. 347, 357 (1967)). “It is equally well settled that
one of the specifically established exceptions to the require-
ments of both a warrant and probable cause is a search that is
conducted pursuant to consent.” Schneckloth, 389 U.S. at 219;
24 No. 13-3811
Davis v. United States, 328 U.S. 582, 593-94 (1946). Thus, even
though the Blazer was not included in the first warrant,
Dollie’s consent authorized the agents to open that “closed
container” of the car and retrieve the hard drive. Because of
Dollie’s consent, there is no need to expand our reasoning
under Percival to extend the scope of the warrant to a vehicle
on the property that was not listed in the warrant, especially
where that vehicle initially bore no known relationship to the
target of the warrant or to any criminality.
As for the contents of the hard drive, having lawfully
recovered the device from a closed container (i.e. the car) on
the premises, the agents were authorized by the first warrant
to search the contents of the hard drive. The warrant distin-
guishes this case from United States v. Basinski, 226 F.3d 829(7th Cir. 2000). Borostowski relies on Basinski for the proposi-
tion that his mother had no actual or apparent authority to
consent to the search of the contents of the hard drive. In
Basinski, police officers wished to search the contents of a
locked briefcase which the defendant had left in the custody of
a friend. The friend voluntarily handed the briefcase over to
police officers who lacked a warrant and who knew that the
friend was not authorized to allow a search of the case. We
held that the warrantless search of the briefcase was unlawful
where the friend lacked actual authority to consent to a search
of the case and where the officers had no reasonable belief that
the friend possessed any authority to consent to the search.
226 F.3d at 834-36. In this case, though, the agents had a
warrant that specifically allowed them to search the contents
of electronic media found on the premises. Dollie’s consent
opened only the door to the car; her permission was not
No. 13-3811 25
necessary for the search of the contents of the device because
the warrant allowed that examination.
If Dollie’s car had not been parked on the premises, we
might be faced with a different analysis of whether the hard
drive’s contents were within the scope of the first warrant. But
the circumstances here are no different than if Borostowski had
hidden the hard drive in his mother’s locked jewelry box in her
bedroom within the house, for example, and his mother
consented to a search of her jewelry box. Borostowski could
have no serious claim that a hard drive found in the jewelry
box would have been beyond the scope of the warrant. Nor
could he have claimed that the agents could not search a hard
drive that had simply been found sitting on the driveway,
which was clearly part of the premises. That the closed
container in which the device was found was a car does not
necessitate a special analysis. In United States v. Evans, 92 F.3d
540, 543 (7th Cir. 1996), we concluded that “a car parked in a
garage is just another interior container, like a closet or a desk.”
When the police possessed a warrant to search a garage for
drugs, we noted that the ownership of a car within the garage
did not play into the lawfulness of the search of the car “unless
it obviously belonged to someone wholly uninvolved in the
criminal activities going on in the house.” Evans, 92 F.3d at 543-
44. Such was the case here where the agents knew that the car
belonged to someone wholly uninvolved in the criminal
activities going on in the house, namely Dollie. But Dollie’s
consent allowed the agents to open the car and the warrant
allowed them to examine the contents of the device found
within the car. In short, the car was on the premises, Dollie’s
consent allowed a search of the car, and the first warrant
26 No. 13-3811
allowed the search of any digital media discovered on the
premises. The district court was therefore correct in declining
to suppress the contents of the hard drive.
C.
We turn finally to the sentencing issue raised by
Borostowski. On appeal, Borostowski complains that the
district court relied on incorrect information in setting his
sentence. Because Borostowski did not object to the court’s use
of that information at the time of sentencing, we review the
district court’s decision for plain error only. United States v.
McLaughlin, 760 F.3d 699, 706 (7th Cir. 2014). In order to
reverse for plain error, we must find (1) error (2) that is plain,
and (3) that affects the defendant's substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). An error is plain if it is
clear or obvious. Olano, 507 U.S. at 734. “An error ‘affects the
defendant's substantial rights' when it is prejudicial, that is,
when it has affected the outcome of the district court proceed-
ings.” United States v. Aslan, 644 F.3d 526, 540–41 (7th Cir. 2011)
(quoting Olano, 507 U.S. at 734). The government agrees that a
defendant possesses a due process right to be sentenced on the
basis of accurate information. Gall v. United States, 552 U.S. 38,
51 (2007).
In analyzing the section 3553(a) factors, the court remarked
that none of the factors could be applied favorably to
Borostowski:
Not only did Mr. Borostowski violate children, he
violated those that placed their trust in him. You
look at the comments to Exhibit 1, teddy bear said,
I would love to see her, a lot more of her, and Mr.
No. 13-3811 27
Borostowski’s response was, working on it. So I
guess in addition to exploiting children and includ-
ing – which includes your [minor female relative],
Mr. Borostowski was willing, or at least indicated a
willingness to pimp or prostitute her out as well.
R. 49, Tr. at 27. Borostowski objects that there was no evidence
in the record supporting the court’s conclusion that he was
willing to “prostitute” the child or sell her sexual services to
anyone. He contends that the court thus relied on inaccurate
information in setting his sentence.
In context, however, the court’s comments do not indicate
plain error in sentencing Borostowski. The government
presented as an exhibit at sentencing a sexually suggestive
photograph of a fully-clothed minor female relative that
Borostowski took and posted on the internet. As the court’s
remarks indicate, when a commenter on the website said that
he would like to see more of the child, Borostowski replied that
he was “working on it.” In context, the court was using the
words “prostitute” and “pimp” as synonyms for “exploit.”
Moreover, the focus of the court’s concern about this picture
and the posted comments was that Borostowski’s actions now
involved not only strangers but the exploitation of a child and
family member who trusted him. The substance of that remark
was true: Borostowski had indeed taken and posted a sexually
suggestive picture of a family member, a child. We find no
error in the court’s characterization of that photograph and the
accompanying comments where it is clear in context that the
court was referring not to literal prostitution but rather to
sexual exploitation through photographs shared on the
internet.
28 No. 13-3811
III.
In sum, we reverse and remand for further proceedings the
district court’s finding that Borostowski was not in custody
during his interrogation. On remand, the court must determine
whether and when Borostowski invoked his right to counsel
and the court must suppress any statements Borostowski made
after any invocation of the right to counsel. We affirm the
court’s decision denying the motion to suppress the contents
of the hard drive retrieved from Dollie’s car. And finally, we
find no plain error in the procedure the district court used in
sentencing Borostowski.
REVERSED AND REMANDED IN PART;
AFFIRMED IN PART.