A man charged with the murder of his 12-year-old son won a partial reversal from the Court of Appeals of Indiana after his motion to suppress evidence against him was denied.
In May 2019, Luis Eduardo Posso Jr. brought his emaciated and badly bruised son to a Bloomington emergency room, where the child was quickly pronounced dead. Posso was subsequently charged with murder, Level 1 felony neglect of a dependent, Level 5 felony neglect of a dependent, Level 5 felony criminal confinement and Level 5 felony battery. The state also filed notice that it intends to seek a sentence of life without parole.
According to Posso, his son, E.P., began gagging and vomiting before coming to the hospital. He said the child had previously fallen and hit his head in the shower, resulting in blood, but that E.P. was “fine” and “wasn’t dizzy.”
Posso was questioned by law enforcement officers at the hospital and at the sheriff’s office prior to his arrest, and he signed consent forms authorizing them to search his motel room, van and cellphone. The motel room where the family was staying contained a locked box of food, chains, restraints and an electric shock collar.
Posso denied depriving E.P. of food or using those implements on him. He also claimed the chains were used to keep E.P. from wandering, despite potentially incriminating text messages that stated, “[E.P.] almost took off the chains.”
Posso asked for an attorney when officers questioned him about marks found on E.P.’s ankles and wrists and text messages about those marks.
After he was charged, the Monroe Circuit Court denied Posso’s motion to suppress evidence seized during the searches based on his argument that he was not advised of his right under the Indiana Constitution to the presence and advice of counsel before he made the decision to sign the consent forms. He also unsuccessfully moved to suppress his statements to the officers, arguing he was subjected to an impermissible “question-first” interrogation in violation of the United States Constitution.
The COA in an interlocutory appeal found no federal constitutional violation and that Posso was not subjected to a “question-first” interrogation. However, it did agree that he was not advised of his state constitutional right.
It therefore reversed the trial court’s denial of Posso’s motion to suppress the evidence seized during the searches and remanded for further proceedings in Luis Posso, Jr. v. State of Indiana, 21A-CR-369.
Deciding that Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), advisements were “definitively” necessary for the searches of Posso’s motel room and van, the COA concluded that an unlimited and general search of a cellphone without probable cause “is an equally weighty intrusion for which a Pirtle advisement is required.”
Further, the appellate court found that Posso was in custody by the time he signed the consent forms and that the detective speaking with Posso did not read the consent forms aloud to him or otherwise verbally advise him of his right to consult with an attorney prior to giving consent to search.
“In fact, after Posso specifically told Detective (Andrew) Rushing that he did not understand what the first consent form was for, the detective made no effort to advise him of his right to counsel or to ensure that he was able to read and understand the form. Moreover, the video evidence establishes that Posso did not read either consent form before he signed them and that Detective Rushing was standing close enough to notice,” Judge Terry Crone wrote for the appellate court.
“Consequently, Detective Rushing’s assurances that the second consent form was ‘the same thing [Posso] read before’ ring hollow,” Crone added in a footnote.
Lastly, the COA did away with Posso’s “question-first” interrogation argument, finding that it could not conclude that a reasonable person under the same circumstances would believe that Posso was under arrest while being questioned at the hospital or not free to resist the entreaties of the police.
“Any sense of obligation on Posso’s part to remain at the hospital until the coroner completed his investigation was not the product of police coercion,” the court held in a footnote.