United States v. Michael Borostowski
2014 U.S. App. LEXIS 24661
7th Cir.2014Background
- FBI used an undercover identity to investigate emails from mikeborostowski@yahoo.com that exchanged child pornography; emails indicated user kept child pornography on an external hard drive.
- Agents obtained a warrant to search Michael Borostowski, his red pickup, and the residence at 412 Opper (including digital media on the premises); the warrant did not list the mother’s Chevrolet Blazer.
- Officers executed an early-morning show-of-force entry (13 officers); Borostowski was pulled from the couch, handcuffed in the yard ~20–25 minutes, then brought back upstairs to his sister’s small bedroom and questioned for ~3 hours after receiving Miranda warnings.
- During questioning Borostowski twice expressed concern about having an attorney; he signed a consent-to-question form and made incriminating admissions. Agents later obtained his mother’s consent to search her Blazer and seized an external hard drive, which a preview search showed contained child pornography.
- After being transported (handcuffed and leg-shackled) to the FBI office for a polygraph, agents later arrested Borostowski; he moved to suppress his statements (arguing Miranda violations after invoking counsel) and to suppress the hard drive contents (challenging vehicle scope and mother’s authority to consent).
- The district court denied suppression; on appeal the Seventh Circuit reversed in part (custody/Miranda remand), affirmed in part (hard drive admissible), and rejected the sentencing claim.
Issues
| Issue | Borostowski's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether interrogation at home was "in custody" for Miranda | Interrogation was custodial given armed entry, handcuffs, confinement, escorting, restraints, and length | Not custodial: familiar surroundings, told he was not under arrest, polite tone, voluntarily cooperated | Court: Reasonable person in his situation was in custody; vacated and remanded to determine when/if he unequivocally invoked counsel and suppress subsequent statements |
| Whether his expressions about wanting an attorney were an invocation of right to counsel | He twice (or thrice) asked for an attorney; statements required interrogation to cease | Agents treated requests as equivocal and continued, obtaining clarifications and continued questioning | Court remanded for district court to decide in first instance whether/when invocation occurred; suppress statements after invocation if any |
| Whether seizure/search of hard drive from mother’s Blazer was unlawful | Blazer not listed in warrant; mother lacked authority over the drive’s contents; preview/search exceeded warrant scope | Mother consented to vehicle search; original warrant authorized search of digital media on premises; preview confirmed contraband | Court affirmed: mother’s consent allowed opening car; warrant authorized search of electronic media found on premises; contents admissible |
| Whether sentencing relied on inaccurate information | Court speculated he intended to “pimp/prostitute” a child without evidence; thus sentencing used incorrect facts | Court’s description was contextual (used “pimp” synonymously with “exploit”); evidence supported sexual exploitation of a minor family member | Court found no plain error in sentencing; characterization not plain error |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (warning and right to counsel required before custodial interrogation)
- Stansbury v. California, 511 U.S. 318 (custody determination depends on objective circumstances)
- Thompson v. Keohane, 516 U.S. 99 (custody is a mixed question; factual findings reviewed for clear error)
- Howes v. Fields, 565 U.S. 499 (custody judged by whether a reasonable person would feel free to leave)
- United States v. Slaight, 620 F.3d 816 (7th Cir.) (politeness/recitation that suspect is free to leave does not negate custodial analysis)
- United States v. Percival, 756 F.2d 600 (7th Cir.) (warrant for premises may extend to vehicles within attached structures—contextual)
- United States v. Basinski, 226 F.3d 829 (7th Cir.) (third party lacking authority cannot validly consent to search of another’s locked container)
- United States v. Evans, 92 F.3d 540 (7th Cir.) (a car in a garage is an interior container for warrant-scope analysis)
- Schneckloth v. Bustamonte, 412 U.S. 218 (consent is a well-established exception to the warrant requirement)