Case Information
*1 Before F LAUM , K ANNE , and R OVNER , Circuit Judges.
R OVNER , 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.
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, 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 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 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 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.
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 mentioned in his emails. Agent Amanda Hoffman [1] 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. 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 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 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. 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.”
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
,
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, 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
,
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,
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
,
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.
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
,
Nor was Borostowski released at the end of the lengthy
encounter.
Howes
,
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
,
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
,
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
,
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 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
,
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
,
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
,
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
,
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
,
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. 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.
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.
Notes
[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.
[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.