In the

United States Court of Appeals

For the Seventh Circuit

No. 13-3811

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL J. BOROSTOWSKI,

Defendant-Appellant.

Appeal from the United States District Court for the 

Central District of Illinois.

No. 1:12-cr-10150-JES-JAG-1— James E. Shadid, Judge.

ARGUED SEPTEMBER 17, 2014 — DECIDED DECEMBER 31, 2014

Before FLAUM, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Michael J. Borostowski pled guilty

to an indictment charging him with one count of receiving

child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A)

and 2252A(b)(1); five counts of distributing child pornography

in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1);

and three counts of possessing child pornography in violation

of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). Borostowski
2 No. 13-3811

reserved his right to appeal the district court’s denial of his

motions to suppress. The district court sentenced him to 293

months of imprisonment, followed by a lifetime of supervised

release. On appeal, Borostowski challenges the district court’s

conclusion that he was not in custody when officers questioned

him on the day a search warrant was executed at his home, as

well as the court’s determination that a hard drive seized from

his mother’s car was within the scope of the search warrant. He

also objects to his sentence. We reverse the district court’s

judgment in part, affirm in part, and remand for proceedings

consistent with this opinion.

I.

In June 2012, an informant allowed an agent of the Federal

Bureau of Investigation (“FBI”) to assume his online identity.

The agent then used that identity to investigate an individual

who had been corresponding with the informant using the

email address mikeborostowski@yahoo.com. The person using

that email address had offered to provide child pornography

videos to the informant in exchange for a web camera session

with a child. The undercover FBI agent subsequently received

child pornography from the user of that email account in June

and August 2012. The FBI then obtained a warrant directed to

Yahoo! to search that email account. The search revealed

exchanges in which the user of the account claimed to keep

child pornography on an external hard drive. Michael

Borostowski, the defendant here, had a prior conviction related

to child pornography. Using information gleaned from that

investigation, an agent applied for a warrant to search

Borostowski’s person, his 1993 red Chevrolet truck and the

premises where he lived with his parents, Dollie and Joseph,
No. 13-3811 3

and his sister, Ramona. The resulting warrant described the

place to be searched:

The premises at 412 Opper, Granville, Putnam County,

Illinois 61326 which is a two-story partial brick, single family

residence with a two-stall attached garage. The premises shall

include all rooms, attic, garage space, and other parts therein

of said residence and any outbuilding or shed on said 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 seven agents were armed with

handguns. The entry team encountered Borostowski’s sister,

Ramona, on the front porch. The lead agent identified himself

and asked Ramona who was in the house. Ramona told the

agent that her brother and parents were asleep inside the

house. An agent remained with Ramona during the execution

of the warrant, preventing her, for a time, from leaving the
4 No. 13-3811

premises. Agent Matthew Hoffman knocked on the door and

announced “FBI search warrant.” Borostowski, who had been

sleeping on the living room couch, answered the door. Agent

Hoffman directed Borostowski to place his hands on his head.

Agent Hoffman then pulled him by the arm out of the house

and handed him off to Agent Jason Nixon. Agent Nixon took

Borostowski by the arm, escorted him onto the lawn and

handcuffed him. A barefoot Borostowski, who was wearing

only sweatpants and a t-shirt, was forced to remain outside for

twenty to twenty-five minutes in roughly forty degree 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
No. 13-3811 5

Dollie coming out of her room upstairs in her pajamas. That

agent brought Dollie downstairs and placed her apart from her

husband in order to question Borostowski’s parents separately.

At some point, another sister approached the house and was

prevented from entering by agents outside the home. 

After the home was secured, Agents Nixon and Gregory

Spencer brought Borostowski back into the home and led him

up to Ramona’s bedroom on the second floor. Once there, they

removed his handcuffs. The bedroom, which was 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
6 No. 13-3811

Spencer then read Borostowski his Miranda rights and asked if

he understood them. Borostowski indicated that he did

understand. Agent Spencer then read the consent portion of

the form to Borostowski and asked if he was willing to answer

questions. Borostowski replied that he wanted to cooperate

and added, “But I think I should have an attorney present.”

Agent Spencer told Borostowski that he was “a bit unclear of

exactly what you mean and what you want,” and suggested

that they discuss this further. Borostowski then told the agent

that he was “torn and conflicted,” that he wanted to cooperate

but that he was also concerned that what he said would be

used against him. Agent Spencer asked if Borostowski had an

attorney in mind and he replied that he did not. Agent Spencer

asked who had represented Borostowski when he was 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.
No. 13-3811 7

Tr. at 196. Agent Spencer also told Borostowski that he

understood his concerns, that he had “some things [he] had to

show him to clear up,” and that he would like Borostowski’s

cooperation. At that, Borostowski agreed to be interviewed and

signed the consent portion of the Miranda form. From the

introductions to the signing of the consent form, approximately

fourteen minutes had elapsed.

For the next two hours, the questioning proceeded uninterrupted 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 admitted to trading child pornography over the internet. He identified pictures and chat sessions and commented on them as the

agents 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 was finished. Agent Nixon then

escorted him back to Ramona’s bedroom. At approximately

8:00 a.m., Agents Nixon and Spencer gave Borostowski a form

titled “Written Statement” and asked him if he would fill it out.

The form contained questions about child pornography and

computer-related issues. Borostowski began to fill out the form

and sometimes paused to ask a clarifying question before

resuming.

While the questioning progressed, the agents searching the

house were unable to locate the hard drive that Borostowski
8 No. 13-3811

mentioned in his emails. Agent Amanda Hoffman1 decided to

ask Dollie about the hard drive. Dollie did not know what a

hard drive was or what one looked like. The agent described

the device to Dollie, who indicated that she had seen 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 to

Dollie 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 signed a consent form. An agent

then searched the Blazer and recovered a hard drive from the

center console area. The hard drive was brought into the house

where a forensic examiner briefly searched the device to

determine if it contained child pornography. After confirming

that it did, the examiner handed off the hard drive to Agent

Spencer, who had taken a break from questioning Borostowski.

At approximately 8:30 a.m., Agent Spencer returned to

Ramona’s bedroom and wordlessly showed the hard drive to

Borostowski. Borostowski looked at it for a few seconds and

then told the agents that he had found it on the road. Agent

Spencer challenged this story, reminding Borostowski that he

had earlier denied owning a hard drive and pointing out that

there were no scratches or marks on the drive as would be

expected for an object found on the road. Borostowski then

indicated that he found the drive in a Walmart parking lot.

1

 There were two agents with the surname “Hoffman” on the scene. We

will refer to Agent Matthew Hoffman as “Agent Hoffman,” and to Agent

Amanda Hoffman by her full name.
No. 13-3811 9

Agent Spencer asked if videos from Walmart would show him

purchasing the hard drive at Walmart. At first, Borostowski

conceded that they would show him making the purchase but

then clarified that videos would simply show him in the

Walmart parking lot with the drive. When Agent Spencer said,

“I don’t believe your story. You know, I believe you purchased

this,” Borostowski replied, “I probably should have an

attorney.” 

Agent Spencer considered this statement equivocal based

on the use of the word “probably” and the context in which the

statement was made. So instead of halting the interview and

alerting Attorney Alvarado, the agents continued the questioning. 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 approximately a half hour past that point. 

As the agents were concluding the questioning, they asked

Borostowski for the “Written Statement” he had been filling

out during the questioning. Borostowski said he was going to
10 No. 13-3811

stop filling it out and wanted to keep it. He placed it in a file

folder and set it aside, declining to give it to the agents.2 Agent

Spencer also asked Borostowski if he was willing to submit to

a polygraph examination and Borostowski agreed to do so. The

agents explained that the equipment and polygraph examiner

were in Peoria. Borostowski’s home was in Granville, Illinois,

approximately 52 miles away. The agents explained to

Borostowski that they would transport him to the FBI office in

Peoria in an FBI vehicle and that standard procedure required

them to restrain occupants. Prior to leaving the house for

Peoria, Borostowski asked if he could put on shoes and a

jacket. The agents allowed him to do so. Two agents then

restrained Borostowski by placing him in handcuffs and leg

shackles before putting him in the FBI car. When Borostowski

asked whether the agents would bring him home again, they

were “non-committal” in answering him, telling him

“[s]omething to the effect of we will make sure that you’re not

stranded or we will make sure that you will get where you

need to go.” Tr. at 126. The restraints were removed at the

Peoria FBI office, and Borostowski was taken into an interview

room for the polygraph examination where he remained “for

a number of hours” behind a closed door with the polygraph

examiner. Tr. at 128-29. After the examination, the agents

provided Borostowski with lunch. Sometime after that, they

received confirmation from the special agent in charge that

they should arrest Borostowski. At that point, they told

2

 Agent Amanda Hoffman later returned to the house and retrieved the

partially completed form from Ramona’s bedroom. At that time, Dollie also

handed over a thumb drive that she found in the home.
No. 13-3811 11

Borostowski that he was under arrest, they again handcuffed

and shackled him, and then transported him to jail.

Borostowski moved to suppress the statements he made to

the agents who questioned him that day on the grounds that

the agents violated his Miranda rights when they continued to

question him after he twice (and perhaps three times) invoked

his right to counsel. He also moved to suppress the hard drive

found in his mother’s car, contending that it was not within the

scope of the search warrant and that his mother’s consent to

search the car did not extend to the contents of the hard drive.

The district court denied both motions. The court found that

Borostowski was not in custody during the questioning that

occurred at his home, and thus was not entitled to the protections 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 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 court 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 has been “taken into custody or

otherwise deprived of his freedom of action in any significant

way” must first “be warned that he has a right to remain silent,

that any statement he does make may be used as evidence

against him, and that he has a right to the presence of an

attorney, either retained or appointed.” 384 U.S. at 444. See also

Stansbury v. California, 511 U.S. 318, 322 (1994). “Statements

elicited in noncompliance with this rule may not be admitted

for certain purposes in a criminal trial.” Stansbury, 511 U.S. at

322. In this instance, it is undisputed that the officers gave

Borostowski an appropriate Miranda warning before questioning him. But immediately after hearing that warning,

Borostowski stated, “But I think I should have an attorney

present.” When an individual in custody “states that he wants

an attorney, the interrogation must cease until an attorney is

present.” Miranda, 384 U.S. at 474; United States v. Wysinger,

683 F.3d 784. See also United States v. Lee, 413 F.3d 622, 626

(7th Cir. 2005) (“I think I should call my lawyer,” “Can I talk to

a lawyer?” and “Can I have a lawyer?” are all unequivocal

invocations of the right to counsel requiring police officers to

halt interrogations). The district court declined to consider

whether Borostowski’s statement was an unequivocal 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 during
No. 13-3811 13

questioning. It is that finding that Borostowski challenges on

appeal. 

We review the district court’s findings of historical fact for

clear error, but the ultimate “in custody” determination for

Miranda purposes is a mixed question of law and fact 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 objective 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 determination of custody depends on the

objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers

or the person being questioned); Thompson, 516 U.S. at 112 (“in

custody” analysis requires consideration of the circumstances

surrounding the interrogation and whether, in light of those

circumstances, a reasonable person would have felt he or she

was not at liberty to terminate the interrogation and leave);

Yarborough v. Alvarado, 541 U.S. 652, 662-63 (2004) (custody

must be determined based on how a reasonable person in the

suspect's situation would perceive his circumstances). Relevant

factors include the location of the questioning, its duration,

statements made during the interrogation, the presence or

absence of physical restraints during the questioning, and the
14 No. 13-3811

release of the interviewee at the end of questioning. Howes,

132 S. Ct. at 1189. See also Ambrose, 668 F.3d at 956 (in determining whether a person is in custody, a court should consider,

among other things, whether the encounter occurred in a

public place, whether the suspect consented to speak with

officers, whether the officers informed the suspect that he was

not under arrest, whether the interviewee was moved to

another area, whether there was a threatening presence of

several officers and a display of weapons or physical force,

whether the officers deprived the suspect of documents needed

to depart and whether the officers’ tone was such that their

requests were likely to be obeyed).

The district court found that the agents arrived at

Borostowski’s home in a show of force. He was handcuffed

and taken outside where an agent remained at his side for

approximately twenty-five minutes. While still handcuffed,

Borostowski was then led back into the home and taken to an

upstairs bedroom by two armed federal agents. The district

court determined that, during that time, Borostowski was “not

free to leave.” The court noted that Borostowski “may have felt

confined” but he was in familiar surroundings in his own

home, the handcuffs were removed once he was in Ramona’s

bedroom, he was told he was not under arrest or in custody,

the questioning was never hostile or combative, and he had

expressed a willingness to cooperate. Acknowledging that a

suspect’s subjective state of mind is irrelevant to the objective

standard applied, the court nevertheless also noted that

Borostowski had yelled to his sister to get him an attorney,

leading the court to conclude that he was “not a meek 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. No

one 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 of
16 No. 13-3811

thirteen officers then entered the house for the search and

questioning. They separated the home’s other occupants and

prevented family members from entering or leaving the home

for a period of time. This overwhelming display of force inside

a single family home would have led a reasonable person to

believe that he was not free to leave. See also United States v.

Mittel-Carey, 493 F.3d 36, 38-40 (1st Cir. 2007) (finding that the

presence of eight officers in the home would contribute to a

finding that a person was in custody); United States v.

Craighead, 539 F.3d 1073, 1084-85 (9th Cir. 2008) (finding that

the presence of eight officers from three different law enforcement agencies in a suspect’s home would lead a reasonable

person 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. Two agents then led a stillhandcuffed 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 polygraph testing. The use of restraints for twenty-five minutes,
No. 13-3811 17

followed by confinement in a small room with an armed officer

blocking the door for the next three hours, followed by the use

of handcuffs and leg shackles would lead a reasonable person

to believe that he was not free to leave. Howes, 132 S. Ct. at 1189

(noting that the use of restraints contributes to a suspect’s

sense that his freedom of movement has been restrained).

Similarly, the accompaniment by officers as Borostowski

moved through his own home would lead a reasonable person

to believe that he was in custody. Mittel-Carey, 493 F.3d at 40

(noting that accompanying the defendant to the bathroom in

his own home indicated a level of control exercised by the

officers that favored a finding of custody).

The district court did not resolve the dispute over whether

the door to the small, crowded bedroom was open or closed

during the three hour interrogation. One agent testified that it

was kept open; the other testified that it was closed most of the

time. The government seeks the benefit of both officers’

testimony, arguing that Borostowski could not have felt

confined with an open door and also that he could not have

been intimidated by the eleven other officers roaming the

house because he would not have been aware of them behind

the closed door. One way or the other, though, these circumstances weigh in favor of finding that Borostowski was in

custody: either the door was open and Borostowski was thus

aware of the large number of officers moving through the

house, or the door was closed and he was confined to a small,

crowded room with two armed agents, one of whom blocked

a closed door. In either case, a reasonable person would not

have felt free to leave. 
18 No. 13-3811

Turning to the remaining factors, it cannot be said that

Borostowski voluntarily agreed to meet with law enforcement

agents. Yarborough, 541 U.S. at 661 (where defendant came

voluntarily to the police station, was immediately informed

that he was not under arrest, was interviewed for half an hour

and then left the police station without hindrance, it is clear

that he was not in custody or otherwise deprived of his

freedom of action in any significant way); California v. Beheler,

463 U.S. 1121, 1125 (1983) (defendant’s voluntary initiation of

communication with police weighs against a finding of

custody); Ambrose, 668 F.3d at 956 (procuring a suspect’s

presence at an interview through the use of a ruse weighs

against voluntariness and in favor of finding that he was in

custody). Although Borostowski was voluntarily in his home

when the agents arrived, he was then removed from the home,

handcuffed and marched to the interview room still in 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 the agents became more and more

restrictive as the day went on, culminating in his formal arrest

at FBI headquarters. The day began with handcuffs, continued

with a constant personal guard of one or two agents, moved

into a small room where an agent stood between Borostowski

and the door, proceeded to handcuffs and leg shackles on a trip

to FBI headquarters, and ended with formal arrest, again with

handcuffs and leg shackles. The at-home portion of the

interview lasted approximately two and a half or three hours
No. 13-3811 19

but then continued with a polygraph examination that was

described by one agent as lasting hours. The extended duration

of the encounter also weighs in favor of a finding of custody.

Howes, 132 S. Ct. at 1189. Moreover, once the external hard

drive was discovered, the tone of the questioning changed,

with Agent Spencer telling Borostowski that he did not believe

Borostowski’s story about finding the hard drive on the road

or in a parking lot. A reasonable person in Borostowski’s

circumstances would not have felt free to end the interview

and leave at any stage of the proceedings. 

Weighed against the strong police presence, the use of

handcuffs and a de facto two-man guard as restraints, the

extended length of the interrogation, the confinement to a

small crowded room, as well as the other factors we have

noted, there are two facts favoring a finding that Borostowski

was not in custody. First, Borostowski was told that he was not

under arrest or in custody. Second, the tone of the questioning

never became hostile or combative. Generally, those facts

would support a finding that a reasonable person would feel

free to leave. But when combined with the other circumstances,

these factors are not determinative. “[B]eing polite to a suspect

questioned in a police station and telling him repeatedly that

he's free to end the questioning and leave do not create a safe

harbor for police who would prefer to give Miranda warnings

after the suspect has confessed rather than before.” Slaight,

620 F.3d at 821. See also United States v. Craighead, 539 F.3d 1073,

1088 (9th Cir. 2008) (the mere recitation of the statement that

the suspect is free to leave or terminate the interview does not

render an interrogation non-custodial per se, but the court must

consider the delivery of these statements within the context of
20 No. 13-3811

the scene as a whole); United States v. Colonna, 511 F.3d 431,

435-36 (4th Cir. 2007) (the mere utterance of the words “you

are not under arrest” does not end the “in custody” analysis

but rather the words must be taken in the larger context of the

totality of the circumstances). 

As for the setting, Borostowski was in familiar surroundings, 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 prolonged); Sprosty v. Buchler, 79 F.3d 635, 641-42 (7th Cir. 1996)

(more important than the familiarity of the surroundings

where the suspect was being held is the degree to which the

police dominated the scene). See also Craighead, 539 F.3d at 1085

(when law enforcement agents restrain the ability of a suspect

to move with physical restraints or through threats or 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 was permitted to move, including
No. 13-3811 21

during a trip to the bathroom, the level of physical control the

agents exercised over the defendant weighed heavily in favor

of finding custody, despite the fact that the control was

exercised inside defendant's home).

On balance, we cannot agree with the district court that a

reasonable person in these circumstances would have felt free

to end the encounter and leave at any point throughout the

day. We vacate the court’s finding and remand so that the

court may consider in the first instance whether and when

Borostowski unequivocally invoked his right to counsel. If the

court concludes that Borostowski did invoke his right to

counsel, then any statements that Borostowski made from that

point forward would be excluded from trial.

B.

Borostowski also challenges the district court’s ruling that

the seizure of the external hard drive recovered from his

mother’s car and the subsequent search of the contents were

authorized under the Fourth Amendment. In considering a

district court's decision on a motion to suppress, we review

findings of fact for clear error and questions of law de novo.

United States v. Peters, 743 F.3d 1113, 1116 (7th Cir. 2014);

Wysinger, 683 F.3d at 793; United States v. Garcia–Garcia,

633 F.3d 608, 612 (7th Cir. 2011). 

There are no real disputes abut the facts. As Borostowski

concedes, the agents here obtained a warrant to search

Borostowski’s person, the premises at Opper Avenue, his 1993

red Chevrolet pickup truck, and any magnetic, optical or

digital media “on said person or in said premises.” After the

agents initially failed to find the hard drive in the house, Agent
22 No. 13-3811

Amanda Hoffman questioned Dollie, who indicated she had

seen an object in her car matching the agent’s description of the

device. Dollie’s car was not listed in the warrant and so the

agent then asked for and received consent from Dollie to

search her Chevrolet Blazer, which was parked on the 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 this search, the district court

noted that Dollie consented to the search of the Blazer, that the

Blazer was parked on the premises, and that the warrant

authorized a search of the premises, including any and all

containers that might contain digital media. Citing our opinion

in United States v. Percival, 756 F.2d 600, 612 (7th Cir. 1985), the

court noted that a warrant which authorizes the search of a

premises may permit the search of vehicles owned or controlled by the owner of the property which are located on the

property. In Percival, the court reasoned, we found lawful a

search of a vehicle parked in an attached garage even though

the warrant authorized only a search of the house and attached

garage. The district court concluded that, under Percival, the

Blazer came within the scope of the warrant and the search of

the hard drive was therefore lawful. In the alternative, the

court noted that the government sought a second warrant for

the contents of the hard drive after conducting the preview

search that revealed the device contained child pornography.

The court found that, under the independent source doctrine,
No. 13-3811 23

the second warrant, untainted by the original search, authorized the search of the contents of the hard drive.

On appeal, Borostowski contends that because the Blazer

was not listed in the warrant, and because Dollie had no

authority to consent to a search of the contents of the hard

drive, that search was unreasonable under the Fourth Amendment. He also objects to the court’s application of the independent 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 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 someone other than the target of

the warrant and, initially, they had no reason to connect it to

any criminal activity. Under the Fourth Amendment, “a search

conducted without a warrant issued upon probable cause is

‘per se unreasonable ... subject only to a few specifically

established and well-delineated exceptions.’” Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United

States, 389 U.S. 347, 357 (1967)). “It is equally well settled that

one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is

conducted pursuant to consent.” Schneckloth, 389 U.S. at 219;
24 No. 13-3811

Davis v. United States, 328 U.S. 582, 593-94 (1946). Thus, even

though the Blazer was not included in the first warrant,

Dollie’s consent authorized the agents to open that “closed

container” of the car and retrieve the hard drive. Because of

Dollie’s consent, there is no need to expand our reasoning

under Percival to extend the scope of the warrant to a vehicle

on the property that was not listed in the warrant, especially

where that vehicle initially bore no known relationship to the

target of the warrant or to any criminality. 

As for the contents of the hard drive, having lawfully

recovered the device from a closed container (i.e. the car) on

the premises, the agents were authorized by the first warrant

to search the contents of the hard drive. The warrant 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 defendant had left in the custody of

a friend. The friend voluntarily handed the briefcase over to

police officers who lacked a warrant and who knew that the

friend was not authorized to allow a search of the case. We

held that the warrantless search of the briefcase was unlawful

where the friend lacked actual authority to consent to a search

of the case and where the officers had no reasonable belief that

the friend possessed any authority to consent to the search.

226 F.3d at 834-36. In this case, though, the agents had a

warrant that specifically allowed them to search the contents

of electronic media found on the premises. Dollie’s consent

opened only the door to the car; her permission was not
No. 13-3811 25

necessary for the search of the contents of the device because

the warrant allowed that examination.

If Dollie’s car had not been parked on the premises, we

might be faced with a different analysis of whether the hard

drive’s contents were within the scope of the first warrant. But

the circumstances here are no different than if Borostowski had

hidden the hard drive in his mother’s locked jewelry box in her

bedroom within the house, for example, and his mother

consented to a search of her jewelry box. Borostowski could

have no serious claim that a hard drive found in the jewelry

box would have been beyond the scope of the warrant. Nor

could he have claimed that the agents could not search a hard

drive that had simply been found sitting on the driveway,

which was clearly part of the premises. That the closed

container in which the device was found was a car does not

necessitate a special analysis. In United States v. Evans, 92 F.3d

540, 543 (7th Cir. 1996), we concluded that “a car parked in a

garage is just another interior container, like a closet or a desk.”

When the police possessed a warrant to search a garage for

drugs, we noted that the ownership of a car within the garage

did not play into the lawfulness of the search of the car “unless

it obviously belonged to someone wholly uninvolved in the

criminal activities going on in the house.” Evans, 92 F.3d at 543-

44. Such was the case here where the agents knew that the car

belonged to someone wholly uninvolved in the criminal

activities going on in the house, namely Dollie. But Dollie’s

consent allowed the agents to open the car and the warrant

allowed them to examine the contents of the device found

within the car. In short, the car was on the premises, Dollie’s

consent allowed a search of the car, and the first warrant
26 No. 13-3811

allowed the search of any digital media discovered on the

premises. The district court was therefore correct in declining

to suppress the contents of the hard drive.

C.

We turn finally to the sentencing issue raised by

Borostowski. On appeal, Borostowski complains that the

district court relied on incorrect information in setting his

sentence. Because Borostowski did not object to the court’s use

of that information at the time of sentencing, we review the

district court’s decision for plain error only. United States v.

McLaughlin, 760 F.3d 699, 706 (7th Cir. 2014). In order to

reverse for plain error, we must find (1) error (2) that is plain,

and (3) that affects the defendant's substantial rights. United

States v. Olano, 507 U.S. 725, 732 (1993). An error is plain if it is

clear or obvious. Olano, 507 U.S. at 734. “An error ‘affects the

defendant's substantial rights' when it is prejudicial, that is,

when it has affected the outcome of the district court proceedings.” United States v. Aslan, 644 F.3d 526, 540–41 (7th Cir. 2011)

(quoting Olano, 507 U.S. at 734). The government agrees that a

defendant possesses a due process right to be sentenced on the

basis of accurate information. Gall v. United States, 552 U.S. 38,

51 (2007).

In analyzing the section 3553(a) factors, the court remarked

that none of the factors could be applied favorably to

Borostowski:

Not only did Mr. Borostowski violate children, he

violated those that placed their trust in him. You

look at the comments to Exhibit 1, teddy bear said,

I would love to see her, a lot more of her, and Mr.
No. 13-3811 27

Borostowski’s response was, working on it. So I

guess in addition to exploiting children and 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 objects that there was no evidence

in the record supporting the court’s conclusion that he was

willing to “prostitute” the child or sell her sexual services to

anyone. He contends that the court thus relied on inaccurate

information in setting his sentence.

In context, however, the court’s comments do not indicate

plain error in sentencing Borostowski. The government

presented as an exhibit at sentencing a sexually suggestive

photograph of a fully-clothed minor female relative that

Borostowski took and posted on the internet. As the court’s

remarks indicate, when a commenter on the website said that

he would like to see more of the child, Borostowski replied that

he was “working on it.” In context, the court was using the

words “prostitute” and “pimp” as synonyms for “exploit.”

Moreover, the focus of the court’s concern about this picture

and the posted comments was that Borostowski’s actions now

involved not only strangers but the exploitation of a child and

family member who trusted him. The substance of that remark

was true: Borostowski had indeed taken and posted a sexually

suggestive picture of a family member, a child. We find no

error in the court’s characterization of that photograph and the

accompanying comments where it is clear in context that the

court was referring not to literal prostitution but rather to

sexual exploitation through photographs shared on the

internet.
28 No. 13-3811

III.

In sum, we reverse and remand for further proceedings the

district court’s finding that Borostowski was not in custody

during his interrogation. On remand, the court must determine

whether and when Borostowski invoked his right to counsel

and the court must suppress any statements Borostowski made

after any invocation of the right to counsel. We affirm the

court’s decision denying the motion to suppress the contents

of the hard drive retrieved from Dollie’s car. And finally, we

find no plain error in the procedure the district court used in

sentencing Borostowski. 

REVERSED AND REMANDED IN PART; 

AFFIRMED IN PART.