### In the 

# United States Court of Appeals For the Seventh Circuit

No. 13-3811

U NITED S TATES OF A MERICA, Plaintiff-Appellee

,

v.

M ICHAEL J. B OROSTOWSKI , Defendant-Appellant.

Appeal from the United Stat es District Court for the Central District of Illinois. No. 1:12-cr-10150-JES-JAG-1— James E. Shadid

, Judge.

A RGUED S EPTEMBER 17, 2014

— D ECIDED D ECEMBER 31, 2014

Before F LAUM, K ANNE , and R OVNER , Circuit Judges.

R OVNER , Circuit Judge. Michael J. Boro stowski 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). Borostowski2 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, followe d 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 th e 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 allo wed an agent of the Federal Bureau of Investigation (“FBI”) to assume his online identity. The agent then used that identi ty 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 ex change for a web camera session with a child. The undercover FB I agent subsequently received child pornography from the user of that email account in June and August 2012. The FBI then ob tained 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 a pplied 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 attach ed garage. The premises shall include all rooms, attic, garage space, and other parts therein of said residence and any outb uilding 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-col ored 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 execut ed 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 bu t did not enter the house. The initial “entry team” was comprised of seven agents. One agent carried a ballistic shield and a ll 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 withRamona during the execution of the warrant, preventing her, for a time, from leaving the4 No. 13-3811

premises. Agent Matthew Hoffmanknocked 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, escort ed him onto the lawn and handcuffed him. A barefoot Borostowski, who was wearing only sweatpants and a t-shirt, wa s forced to remain outside fortwenty 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 wh en 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 thatthey 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 encounteredNo. 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 backinto the home and led him up to Ramona’s bedroom on the second floor. Once there, theyremoved his handcuffs. The bedroom, which was approximately 13'6" by 9'9", contained a double- or queen-sized bed, a dresser and a nightstand. Borost owski 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 enou gh 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 itwas closed. The district court did not resolve the inconsistency. Although the agents were armed, their weapons were holstere d at that point. For the next three hours, as eleven other law enforcement personnel searched the home and question ed 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 we re 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 hi m questions about his activities and items from the house. Us ing a standard form, Agent6 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 as ked 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 Bo rostowski that he was “a bit unclear of exactly what you mean and what you want,” and suggested that they discuss this further. Bo rostowski 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 Spencerasked who had represented Borostowski when he was previously prosecuted for child porn ography 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, Borostowsk i 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 exte rnal hard drive but claimed tohave lost it, and that he had a thumb drive as well. He admitted to trading child pornography over the internet. He identified pictures and chat sessions and commented on them as theagents made a list. At some point, he asked to use the bathroom. Agent Nixon escorted him down the hallway to the bathroom and then waited outside the door with two other agents until Borostowski wa s finished. Agent Nixon then escorted him back to Ramona’s bedroom. At approximately 8:00 a.m., Agents Nixon and Spen cer gave Borostowski a form titled “Written Statement” and as ked 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 Borostowski8 No. 13-3811

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 l ooked like. The agent describedthe device to Dollie, who indicated that she had seen something 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 toDollie that they were searching for evidence of child pornography, 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 si gned a consent form. An agent then searched the Blazer and reco vered a hard drive from the center console area. The hard dr ive 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 h ard 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 dr ive. When Agent Spencer said, “I don’t believe your story. Yo u 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 “probabl y” and the context in which the statement was made. So instead of halting the interview andalerting Attorney Alvarado, the agents continued the questioning. Agent Spencer again soughtto “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 agen ts needed to clarify what Borostowski wanted before they proceeded. Agent Spencer then asked directly, “Do you agr ee 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 itthere in order to keep it off of his laptop computer. The qu estioning continued for approximately a half hour past that point. As the agents were concluding the questioning, they asked Borostowski for the “Written St atement” he had been filling out during the questioning. Borostowski said he was going to10 No. 13-3811

stop filling it out and wanted to keep it. He placed it in a file folder and set it aside, declin ing 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 tran sport him to the FBI office in Peoria in an FBI vehicle and th at 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 hi m 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 re straints were removed at the Peoria FBI office, and Borostowski was taken into an interview room for the polygraph examin ation 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 return ed 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, conten ding 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 bothmotions. The court found that Borostowski was not in custod y during the questioning that occurred at his home, and thus wa s not entitled to the protections of Miranda . The court therefore declined to consider whether Borostowski’s statements regarding an attorney were unequivocal invocations of his ri ght 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 th at the district court erred when it concluded that he was not in custody for Fifth Amendment 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 co urt relied on incorrect information in setting his sentence.

A.

In Miranda v. Arizona , 384 U.S. 436 (1966), the Supreme Court held that a person who ha s 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 questioning him. But immediately after hearing that warning, Borostowski stated, “But I think I should have an attorney present.” When an individual incustody “states that he wants an attorney, the interrogation mu st 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 distri ct court declined to considerwhether Borostowski’s statement was an unequivocal invocation 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 duringNo. 13-3811 13

questioning. It is that findin g that Borostowski challenges on appeal.

We review the district court’s fi ndings of historical fact for clear error, but the ultimate “in custody” determination for Miranda purposes is a mixed questi on of law and fact qualifying 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 object ive circumstances of the interrogation, 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 determinat ion of custody depends on the objective circumstances of th e 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 cons ideration of the circumstances surrounding the interrogation an d 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 ho w 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 du ring the questioning, and the14 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 determining whether a person is in cust ody, a court should consider, among other things, whether the encounter occurred in a public place, whether the su spect consented to speak with officers, whether the officers in formed the suspect that he was not under arrest, whether th e 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 office rs’ tone was such that their requests were likely to be obeyed).

The district court found th at the agents arrived at Borostowski’s home in a show of force. He was handcuffed and taken outside where an agen t 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 fam iliar 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 th at he was “not a meek individual 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. Noone disputes that additional officers outside the home provided 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 characterized 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 physically pulled him from the house and restrained him. A total of16 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 enforcement agencies in a suspect’s home would lead a reasonableperson to feel that his home was dominated by law enforcement 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. Tw o agents then led a stillhandcuffed Borostowski back in to 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 hishands and legs and drove him to FBI headquarters for polygraph testing. The use of restraints for twenty-five minutes,No. 13-3811 17

followed by confinement in a sma ll 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 restrai nts 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 reso lve the dispute over whether the door to the small, crowded bedroom was open or closed during the three hour interrogati on. One agent testified that it was kept open; the other testified that it was closed most of the time. The government seeks th e 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 elevenother officers roaming the house because he would not have been aware of them behindthe closed door. One way or the other, though, these circumstances weigh in favor of fi nding 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, wa s 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 wa s then removed from the home,handcuffed and marched to the interview room still in handcuffs. 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 th e 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 ag ent stood between Borostowski and the door, proceeded to handc uffs 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 hoursNo. 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 Borost owski that he did not believe Borostowski’s story about finding the hard drive on the road or in a parking lot. A reason able person in Borostowski’s circumstances would not have fe lt 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 favori ng 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 determinativ e. “[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 re citation 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 st atements within the context of20 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 take n in the larger context of the totality of the circumstances).As for the setting, Borostowski was in familiar surroundings, in his sister’s bedroom, in his parents’ home. That fact generally weighs in favor of find ing that he was not in custody. But he was forcefully separated from family members, and although he was in his own ho me, 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 en tered 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 infamiliar surroundings and the interrogation was not prolonged); Sprosty v. Buchler, 79 F.3d 635, 641-42 (7th Cir. 1996) (more important than the fa miliarity 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 re strain the ability of a suspectto move with physical restraints or through threats or intimidation, 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 wa s permitted to move, includingNo. 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 th e 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 ab ut 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 th e hard drive in the house, Agent22 No. 13-3811

Amanda Hoffman questioned Dollie, who indicated she had seen an object in her car matchi ng 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 tosearch her Chevrolet Blazer, which was parked on the premises, 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 th is search, the district court noted that Dollie consented to the search of the Blazer, that the Blazer was parked on the pr emises, 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 whic h authorizes the search of a premises may permit the searc h of vehicles owned or controlled by the owner of the pr operty 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 se arch 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, authorized the search of the contents of the hard drive. On appeal, Borostowski conten ds that because the Blazer was not listed in the warrant, and because Dollie had no authority to consent to a searc h of the contents of the hard drive, that search was unreason able under the Fourth Amendment. He also objects to the court’s application of the independent source doctrine. We co nclude 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 Borost owski lived. The warrant authorized 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 so meone 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 thatone of the specifically established exceptions to the requirements of both a warrant and prob able 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 lis ted 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 warrantto search the contents of the hard drive. The warrant distinguishes this case from United States v. Basinski, 226 F.3d 829 (7th Cir. 2000). Borostowski relies on Basinski for the proposition 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 defend ant 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 office rs 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 allowe d 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 notNo. 13-3811 25

necessary for the search of the co ntents 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 th e scope of the first warrant. But the circumstances here are no different than if Borostowski had hidden the hard drive in his moth er’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 th e agents could not search a hard drive that had simply been fo und sitting on the driveway, which was clearly part of th e 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 conclu ded that “a car parked in a garage is just another interior co ntainer, like a closet or a desk.” When the police possessed a warrant to search a garage for drugs, we noted that the owners hip 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 wher e 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 co ntents of the device found within the car. In short, the car was on the premises, Dollie’s consent allowed a search of th e car, and the first warrant26 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. “A n error ‘affects the defendant's substantial rights' when it is prejudicial, that is, when it has affected the outcom e of the district court proceedings.” United States v. Aslan , 644 F.3d 526, 540–41 (7th Cir. 2011) (quoting Olano , 507 U.S. at 734). The gove rnment 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 Iguess in addition to exploiting children and including – 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 obje cts that there was no evidence in the record supporting the co urt’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 onthe internet. As the court’s remarks indicate, when a commenter on the website said that he would like to see more of th e 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 th at 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 characterizat ion 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 righ t to counsel. We affirm the court’s decision denying the mo tion to suppress the contents of the hard drive retrieved from Dollie’s car. And finally, we find no plain error in the proc edure the district court used in sentencing Borostowski.

REVERSED AND REMANDED IN PART;

AFFIRMED IN PART.