United States v. Borostowski, 13–3811.

Decision Date31 December 2014
Docket NumberNo. 13–3811.,13–3811.
Citation775 F.3d 851
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Michael J. BOROSTOWSKI, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit


Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for PlaintiffAppellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, for DefendantAppellant.

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 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.


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 mikeboros towski@ 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, 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 premises.

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 sevenagents 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 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 temperatures 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 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 approximately 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 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 previously 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.

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 uninterrupted and in a conversational tone. During that time, Borostowski said numerous incriminating things. He told the agents that he owned an external hard...

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