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A Little Good News (Mostly Bad) for Child Porn Defendant on Appeal

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By Mark Wilson, Esq. on January 06, 2015 1:24 PM

If you're looking for treasure troves of interesting Fourth Amendment issues, it seems like your two go-to crimes are drugs and child pornography. This case from the Seventh Circuit involves the latter.

An informant allowed an FBI agent to assume his identity online. The agent corresponded with defendant Michael Borostowski, who offered to provide the agent with child pornography in exchange for a webcam "session" with a child. After receiving the promised pornography, the agent got a warrant to search Borostowski's Yahoo email account, revealing, shockingly, more pornography! This led to a warrant of Borostowski's physical home and some more porn, then a conviction and a 24-year prison sentence.

That Seems Like 'Custody'

So what's on appeal here? While FBI agents were searching his house, they had Borostowski cornered in his bedroom, where an agent stood between him and the door, asking him questions. Borostowski claimed that this placed him "in custody" for Fifth Amendment purposes, meaning questioning should have stopped when he asked for a lawyer. He also wanted a hard drive found in his mother's car suppressed.

Of course, whether agents had to stop questioning him when he invoked his right to counsel depends on whether he was in custody at the time. The district court said he wasn't, but the Seventh Circuit Court of Appeals noted that FBI agents arrived "in a show of force" and that, even though Borostowski was in his own home and not handcuffed (at least when he was questioned there), he definitely wasn't "free to leave." The only factors weighing against custody were agents' not telling him that he was under arrest and the fact that the questioning was pleasant.

So, yeah, he was in custody. Because the district court halted its analysis at this point, the Seventh Circuit remanded to consider whether Borostowski clearly invoked his right to counsel.

What's a Hard Drive?

The external hard drive was in Borostowski's mother's car, which wasn't described in the search warrant. The district court, however, found that Borostowski's mother had consented to a search of her car, putting the search outside the realm of Fourth Amendment protection. The Seventh Circuit agreed, finding that the car "was essentially a closed container on the premises," making it " 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." From there, it was easy to find that a search of the hard drive was lawful.

The Seventh Circuit's view of attorney invocation is less strict than the U.S. Supreme Court's, so Borostowski's statements -- " I think I should have an attorney present" and "I probably should have an attorney" -- have a fighting chance of surviving at district court. Borostowski's sentence, however, probably isn't changing any time soon.

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