United States v. Borostowski, 2014 WL 7399074 (C.A.7 (Ill.)), December 31,2014

Facts: An FBI Agent assumed (with consent) the identity of an informant, and used that identity to chat with appellant.  Appellant offered to provide child sexual abuse images in exchange for a web cam session with a child.  Images were sent from Appellant to the FBI, and a search warrant followed.  The facts pertaining to the issue at hand are extensive (it’s obvious the court was not happy with the execution of the search warrant).  The facts presented are limited to the issue we discuss in this blog.   13 law enforcement agents executed the warrant.  They knocked and announced, Appellant opened the door and let them in.  Appellant was grabbed by the arm, brought outside, and handcuffed.  He was made to wait 25 minutes while the house was secured (he was in sweatpants, a t-shirt, no socks or shoes in 40 degree weather).  Once secured he was brought to one of the bedrooms and uncuffed.  Two agents stayed in the room, one blocking the door.  The agents told Appellant what they were there for, and that he was not under arrest.

Appellant was Mirandized, and replied that he wanted to cooperate, “But I think I should have an attorney present.” Agent S told Appellant that he was “a bit unclear of exactly what you mean and what you want,” and suggested that they discuss this further.  Appellant 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 S asked if Appellant had an attorney in mind and he replied that he did not. Agent S asked who had represented Appellant when he was previously prosecuted for child pornography offenses.

Appellant then named Assistant Federal Public Defender RA, 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 RA because, as Agent N candidly acknowledged, they wanted to continue the interview without a lawyer present. Instead, Agent S told Appellant: “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.” Agent S also told Appellant that he understood his concerns, that he had “some things [he] had to show him to clear up,” and that he would like Appellant’s cooperation. At that, Appellant 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, Appellant 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 N escorted him down the hallway to the bathroom and then waited outside the door with two other agents until Appellant was finished. Agent N then escorted him back to the bedroom. While the Agents were interviewing Appellant, the other agents were looking for the hard drive.  It was ultimately found in Appellant’s mother’s car (Appellant lived at home with his parents).  Mom provided consent for the search of her car.  Appellant later admitted to owning the hard drive.  A preview search revealed many files of evidentiary value.   Appellant was charged with one count of receipt, five counts of distribution, and three counts of possession.  He was convicted and sentenced to 293 months, followed by lifetime supervised release.

Issue:  There are several, but we will only address the one resulting in remand pertaining to the 5th Amendment concern.   At trial Appellant moved to suppress all the statements he made to the Agents.  The trial court found that appellant was not in custody and therefore there was not entitled to Miranda protections.

Law:  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, ___U.S.____, 132 S. Ct. 1181, 1189, 182 L.Ed.2d 17 (2012). (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). United States v. Ambrose, 668 F.3d 943, 956 (7th Cir.2012)

Holding:  While not disagreeing with the lower court’s findings of fact, the appellate court found nearly all of the factors weighed in favor of Appellant being in custody. “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 Appellant  unequivocally invoked his right to counsel. If the court concludes that Appellant did invoke his right to counsel, then any statements that Appellant made from that point forward would be excluded from trial.”

Note: Not mentioned by the appellate court, but perhaps one which will be considered on remand is whether the hard drive found in mom’s car and derivative evidence there from will also be suppressed.  Maybe the Agents would have searched the car anyway (inevitable discovery), or maybe there won’t be any facts to support that.  In any event, this is a pretty big loss and warrants the reminder that just because we aren’t in a station house doesn’t mean no interrogation.

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This entry was posted in Defenses, Fifth Amendment, Rules of Evidence, Search Warrant, Suppression. Bookmark the permalink.

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