Back in July, 2014, I wrote two blogs on an evolving issue related to people’s rights when the police execute a search warrant at their home. The scenario that I am seeing more frequently is that the police first get a search warrant to search a person’s home. The search warrants are frequently obtained in cases involving child pornography, fraud and computer crimes.
The police then execute the search warrant around six in the morning and do so with a significant show of force. There are often 10 or more officers who wear raid gear, weapons, and who very aggressively secure the premises. The unsuspecting home owners usually are terrified.
The police then find their suspect and isolate him/her from the house’s other occupants (spouse, children, etc.) and begin questioning the person. They often tell the person that he is not under arrest but they do not tell the person all of his rights pursuant to Miranda (like, for example, that they have a right to a lawyer, that if they don’t have the money to hire a lawyer a lawyer will be appointed for them, that they can end the interview at any time). In light of law enforcement’s extreme show of force, many people do not feel free to leave or end the questioning. The police’s shock and awe tactic is for many so terrifying that they feel they must remain in the home and must answer the police’s questions.
The issue is this: Under these circumstances must the police inform a person of his Miranda rights? The answer is not simple and there are many moving parts but the law is evolving in this area. Recently, the 7th Circuit Court of Appeals in United States v. Borostowski weighed in on the issue and did so in favor of the defendant.
In Borostowski, the defendant was a suspect in a child pornography case. Seven armed federal agents (one carrying a ballistic shield) executed a search warrant at his home at 6 a.m., placed him in handcuffs for 25 minutes, released him when the house was safe, and then interviewed him without the benefit of Miranda warnings. The trial court found that Borostowski was not under arrest and, therefore, he did not deserve to have his Miranda warnings read to him. The 7th Circuit, however, reversed finding that under the circumstances a reasonable person in Borostowski’s situation would not have felt free to leave and, thus, the police should have read him his Miranda rights.
Borostowski and other similar rulings point to courts’ evolving thinking on this difficult issue. A court in the Eastern District of Virginia recently dealt with this issue. I will discuss that case in my next blog.