7th Circuit Court of Appeals
Beth A. Sweet v. Town of Bargersville and Steve Longstreet
A woman who claimed she was fired for criticizing her superior’s choice to overturn a decision she made regarding a customer’s utility services did not convince the 7th Circuit Court of Appeals that she was retaliated against.
After nearly 20 years of working in the clerk-treasurer’s office for the town of Bargersville, Beth Sweet was fired for multiple reasons, including her declining work performance and resistance to change or adapting in her work environment.
Sweet was responsible for collecting utility bills and setting up payment plans for customers before Steve Longstreet was elected as clerk-treasurer in 2012.
Under Longstreet’s leadership, the office transitioned outsourced collections to a private firm, and Sweet was shifted to a more general customer service role in which she communicated with customers and managed disconnections on overdue utility accounts.
In that role, her performance significantly declined, and reviews claimed she was argumentative, resistant to change and disorganized, among other things.
In August 2017, Sweet noticed that a wealthy resident, Jim Parsetich, had fallen behind on his utility payments. Although she disconnected his service, Longstreet reconnected the utilities and overturned her decision, which Sweet opposed because Parsetich happened to be Longstreet’s business partner.
A few months later, Sweet was fired, and she subsequently sued on retaliation grounds in violation of her First Amendment right to freedom of speech. Sweet argued she was terminated for vocalizing her opposition to the reconnection, but the Indiana Southern District Court held that Sweet failed to establish a prima facie case of retaliation and entered summary judgment for the defendants.
The 7th Circuit affirmed, finding Sweet’s evidence in support of a retaliatory motive was “paltry” in Beth A. Sweet v. Town of Bargersville and Steve Longstreet, 20-2061.
As to causation, the 7th Circuit noted that Sweet complained about Longstreet’s decision to reconnect Parsetich’s utilities in August 2017, and she was fired five months later, in January 2018.
“That time lapse is simply too great to support an inference of retaliatory motive,” Chief Judge Diane Sykes wrote for the 7th Circuit, noting that a five-month gap is “much longer” than anything it has accepted as evidence of retaliatory motive in other rulings.
The appellate court additionally questioned the purpose of an affidavit Sweet relied on to support her argument from a former co-worker who had the same supervisor as Sweet and was also fired. The 7th Circuit found that the affidavit from Jennifer Ashbaugh-Ernest added nothing to Sweet’s case, pointing out that the affidavit never mentioned anything about Longstreet or his involvement in the decision to fire Sweet.
Lastly, it concluded that Sweet’s “shifting” explanations for why she was fired were not enough to establish retaliatory motive.
“Rather, the evidence as a whole points in the same direction: Sweet was fired for multiple reasons, as summarized in Longstreet’s affidavit, which is not nearly as limited as Sweet implies,” Sykes concluded.
“In short, Sweet has not produced sufficient evidence from which a reasonable jury could infer retaliatory motive. Because her criticism of Longstreet was not constitutionally protected and the record does not suggest that her speech was a motivating factor in the termination of her employment, the judge appropriately entered summary judgment for the defendants.”
Court of Appeals of Indiana
Civil Plenary-Employment Discrimination/Dismissal
Joshua Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.
A gay teacher who sued the Archdiocese of Indianapolis after he was terminated from his teaching position at Cathedral High School has been given another chance to make his case after the Court of Appeals of Indiana found the trial court committed reversible error in dismissing the lawsuit.
The ruling from the unanimous appellate panel revives the complaint filed by Joshua Payne-Elliott, who was fired after teaching at Cathedral for 13 years because he married his same-sex partner.
In Joshua Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., 21A-CP-936, the Court of Appeals found the Marion Superior Court committed three reversible errors. Primarily, the COA ruled the trial court erred by summarily dismissing Payne-Elliott’s complaint for lack of subject matter jurisdiction; failing to treat the Archdiocese’s motion to dismiss as a motion for summary judgment; and dismissing Payne-Elliott’s complaint with prejudice.
The Archdiocese had raised the ministerial exception defense, claiming the civil court could not interfere with the employment dispute because it involved matters of religious doctrine and faith. However, the Court of Appeals ruled the issues raised by Payne-Elliott were not ripe for resolution on summary judgment.
The case has been remanded for further proceedings.
“We feel vindicated that the Court of Appeals has firmly rejected the Archdiocese of Indianapolis’s efforts to sidestep the judicial process,” Payne-Elliott said in a statement. “We remain confident that the discovery process will demonstrate the righteousness of our case and hold the Archdiocese accountable for violations of Indiana law.”
Payne-Elliott had taught language and social studies at Cathedral High School in Indianapolis since 2006. Each year he was offered a contract by Cathedral to continue his teaching assignment and had already signed the contract to teach during the 2019-2020 school year.
The Court of Appeals noted only Cathedral and Payne-Elliott were parties to the teaching contract.
Three days after renewing Payne-Elliott’s teaching contract, Cathedral told him the Archdiocese was requiring the school to adopt and enforce a morals clause or it risked losing its status as a recognized Catholic institution. The morals clause stated, in part, “As role models for students, the personal conduct of every teacher and staff member must convey and be supportive of the teachings of the Catholic Church.”
Cathedral terminated Payne-Elliott’s contract in June 2019, roughly a month after it had been signed.
After Stephen Heimann was appointed special judge, the Archdiocese filed a motion to dismiss. The Archdiocese argued the case should be tossed for lack of subject matter jurisdiction pursuant to Indiana Trial Rule 12(B)(1) and for failure to state a claim upon which relief may be granted pursuant to Indiana Trial Rule 12(B)(6). In particular, the Archdiocese asserted that under the First Amendment, Payne-Elliott’s claims would be barred by the ministerial exception.
The trial court subsequently denied the motion to dismiss, holding, in part, that more discovery was needed. Also, in denying the Archdiocese’s attempt to make an interlocutory appeal, the trial court noted there are exceptions to the ministerial exception doctrine and reiterated that more evidence was needed to determine if this case fits under an exception.
Likewise, the Indiana Supreme Court denied the Archdiocese’s subsequent motions for writ of mandamus and writ of prohibition. By the time the case returned to the trial court, Heimann had recused himself and Lance Hamner had been appointed special judge.
Following Hamner’s one-page dismissal of his lawsuit, Payne-Elliott challenged the trial court’s dismissal for lack of subject matter jurisdiction pursuant to Indiana Trial Rule 12(B)(1).
He countered the ministerial exception by arguing the trial court erred because his claims did not implicate internal church governance, request the courts to resolve an ecclesiastical controversy or otherwise excessively entangle the courts with religion. The Archdiocese responded that in issuing the directive to Cathedral, it “act[ed] in accordance with ecclesiastical directive[,] deriving from canon law, which civil courts cannot review or question.”
The Court of Appeals cited to the amicus brief filed by Lambda Legal. The brief argued discovery was needed to determine whether the ministerial exception applied.
“Here, the parties have yet to undertake the requisite ‘fact-sensitive and claim specific’ analysis that must precede analysis of whether the First Amendment bars Payne-Elliott’s claims against the Archdiocese,” Judge Elizabeth Tavitas wrote for the court. “For instance, do genuine issues of material fact exist regarding: (1) whether Payne-Elliott’s job duties as a teacher at an Archdiocese-affiliated school rendered him a ‘minister’; or (2) the applicability of the ecclesiastical abstention doctrine? At this juncture, discovery in this matter is ongoing, and we find that this matter is well shy of being ripe for summary disposition.”
Luke Goodrich, vice president and senior counsel for Becket, the religious rights law firm that is representing the Archdiocese, said precedent supports the stance of the Indianapolis Catholic Church.
“The (U.S.) Supreme Court has repeatedly upheld the constitutional right of Catholic schools to hire teachers who fully support the schools’ Catholic mission,” Goodrich said in a statement. “Today’s ruling doesn’t address this core issue, and we’re confident that when the courts finally do, they will respect this fundamental right. If the First Amendment means anything, it means the Catholic Church can ask Catholic school teachers to support Church teaching.”
Kathleen DeLaney of DeLaney & DeLaney, who is representing Payne-Elliott, maintained the Catholic Church does not have unlimited power over its employees.
“We are pleased with the Court of Appeals’ ruling today, which is a welcome victory for Joshua Payne-Elliott and all teachers in religious schools,” DeLaney said in a statement. “Teachers do not leave their constitutional rights at the door when they devote themselves to teaching students in Catholic schools.”
The Court of Appeals also held that because the Archdiocese attached “matters outside the pleading that were presented to and not excluded by the court,” the trial court was compelled by Trial Rule 12(B) to regard the Archdiocese’s motion to dismiss as a motion for summary judgment.
Yet even if the lower court had properly treated the Archdiocese’s motion as a motion to dismiss, the Court of Appeals concluded the trial court still erred in dismissing Payne-Elliott’s complaint for failure to state a claim pursuant to Trial Rule 12(B)(6).
The appellate panel found Payne-Elliott met Trial Rule 8’s pleading standard in his complaint against the Archdiocese for intentional interference with a contract and intentional interference with an employment relationship.
In part, Payne-Elliott alleged the Archdiocese issued a directive wherein Cathedral was required to not only adopt and enforce the morals clause language but also fire any teacher in a public, same-sex marriage. Moreover, Cathedral would forfeit being formally recognized as a Catholic school in the Archdiocese by failing to comply with the directive. Cathedral subsequently terminated Payne-Elliott’s employment.
Citing Bellwether Props., LLC v. Duke Energy Indiana, Inc., 87 N.E.3d 462, 466 (Ind. 2017), the Court of Appeals noted a motion to dismiss under 12(B)(6) “tests the legal sufficiency of the [plaintiff’s] claim, not the facts supporting it.”
Payne-Elliott had raised only the first two issues in his appeal. The Court of Appeals on its own addressed whether the trial court erred in dismissing the case with prejudice.
As the appellate panel explained, when the trial court dismissed Payne-Elliott’s claims for lack of subject matter jurisdiction, this meant the court lacked the power to reach the merits. Yet in also dismissing the claims with prejudice, the trial court was adjudicating the case on the merits.
“Because dismissal for lack of subject matter jurisdiction cannot be ‘with prejudice,’ the trial court’s entry of dismissal with prejudice was improper,” Tavitas wrote, referencing Hart v. Webster, 894 N.E.2d 1032, 1037 (Ind. Ct. App. 2008) (citing Perry v. Stitzer Buick GMC, Inc., 637 N.E. 2d 1282, 1286 (Ind. 1994)).
Civil Plenary-Class Actions/Car Dealerships
Butler Motors, Inc., et al. v. Michael Benosky, et al.
Two car dealer groups could not convince the Court of Appeals of Indiana to order the dismissal of class action lawsuits brought against them by angry customers.
Customers in 14 consolidated class action causes had purchased or leased vehicles from a group of Indiana automobile dealers and a second group described as “alter ego dealers,” named as defendants under the alter ego doctrine.
During various transactions that took place between 2013 and 2020, the dealers charged consumers a document preparation fee of less than $200. The dealers listed the document preparation fee as an itemized expense in the sales contracts, but neither included the fee in the advertised price of the vehicle nor negotiated it with the consumers.
In their class action complaints, the consumers raised three claims, including a violation of the Deceptive Consumer Sales Act, constructive fraud and unjust enrichment. Their claims were based on the allegation that, between the years at issue, the dealers had charged a document preparation fee that was contrary to the Motor Vehicle Dealer Services Act under Indiana Code § 9-32-13-7.
Members of the Indiana Legislature amended the statute in May 2019, making the effective date of the amended statute retroactive to July 1, 2013.
The consumers’ cases were consolidated, and both the dealers and the alter ego dealers filed motions to dismiss.
The alter ego dealers argued the consumers’ claims against them should be dismissed because they had not charged a document preparation fee to any of the consumers because their names were not on the sales contracts. For their part, the dealers primarily argued that the consumers’ DCSA claims should be dismissed because the 2019 document preparation fee amendment should be applied retroactively. It also maintained that the amendment expressly permitted a document preparation fee under $200, which the dealers asserted made the fees they charged “per se” lawful.
“Despite arguing that the 2019 Doc Fee Amendment applied retroactively, Dealers argued that Consumers could not use that retroactive amendment to prove their DCSA claim that Dealers had failed to include the Doc Fee in the advertised sale price,” Judge Rudolph Pyle wrote for the COA, adding that the consumers responded by asserting their DCSA claims were not precluded by the 2019 amendment.
The dealers also acknowledged that Gasbi LLC v. Sanders, 120 N.E.3d 614 (Ind. Ct. App. 2019), trans. denied, provided that a consumer could raise a claim under the DCSA by alleging a dealer had violated the MVDSA document preparation fee statute.
“Dealers, however, argued that Gasbi predated the 2019 Doc Fee Amendment and applied only to the pre-amendment version of the Doc Fee Statute,” the COA wrote.
The Marion Superior Court ultimately denied both motions to dismiss in two interlocutory orders.
As to the dealers’ motion, it concluded the consumers’ DCSA claims were not subject to dismissal because the 2019 amendment applied retroactively and did not expressly authorize the dealers to charge a document preparation fee under $200. Additionally, the trial court found the consumers’ complaints would survive the alter ego dealers’ motion to dismiss because the consumers had sufficiently demonstrated a claim under the alter ego doctrine and had standing.
After the trial court granted the defendants’ motion to certify the orders and stay the proceedings, the Court of Appeals affirmed in a unanimous 42-page decision in Butler Motors, Inc., et al. v. Michael Benosky, et al., 20A-PL-1871.
As to the dealers’ challenge to the trial court’s denial of its consolidated motion to dismiss, the COA concluded that because the 2019 amendment did not expressly authorize the charging of the document preparation fee of $200 or less, “there is no preclusive effect under Indiana Code § 24-5-0.5-6(2),” and the DCSA was applicable to the consumers’ related claims.
“Because Consumers’ complaints, in relation to their DCSA claims, set forth allegations upon which relief could be granted, the trial court did not err by denying Dealers’ Consolidated MTD in regard to Consumers’ DCSA claims,” it concluded.
The appellate court also found the consumers’ complaint sufficiently raised fraudulent concealment that may toll the statute of limitations to survive the motion to dismiss stage. The COA also determined the trial court did not err by concluding that the common law claims were not precluded by the 2019 amendment.
Next, it concluded that the consumers pleaded the operative facts necessary to establish a claim of constructive fraud, and that the trial court did not err by denying the dealers’ motion to dismiss the consumers’ unjust enrichment claim.
Finally, the COA concluded the trial court did not err by denying the alter ego dealers’ motion to dismiss for lack of standing under the alter ego doctrine “(b)ecause Consumers’ allegations are sufficient to establish circumstances under which they could be entitled to relief if they are able to prove their claim … .”
Civil Tort-Small Claims/Landlord-Tenant Dispute
Takila Walker v. Herman & Kittle Properties, Inc. and Washington Pointe Apartments
A pro se litigant who filed a $2.5 million lawsuit in Marion Superior Court using a small claims form will be able to seek damages from her landlord after the Court of Appeals of Indiana found res judicata did not bar all her claims.
Takila Walker filed a handwritten complaint in November 2019 in Marion County Small Claims Court against the landlords of the apartment she was leasing. She sought $8,000 in damages from Herman & Kittle Properties Inc. and Washington Pointe Apartments in Indianapolis.
Walker’s amended notice listed claims for “inhabitable (sic) living conditions, wrongful use of power, harassment, emotional distress, pain [and] suffering, attorney fees, court costs, humiliation, knowingly aware of employee contributing alcohol and narcotics to my minor children, move out at their total expense, days loss of pay from work.”
While her small claims case was pending, Walker filed a complaint in July 2020 in Marion Superior Court against her landlords. Court documents show Walker used a small claims court form, scribbling out the word “small” and writing in that the defendants owed her $2.5 million.
Her complaint asserted the damages were for “(i)nhabitable (sic) living conditions, wrongful use of power, knowingly intentional torture, [g]ross negligence, negligent infliction of emotional distress, constructive eviction, mental anguish, nuisance, breach of implied warranty of habitability, breach of contract, pain [and] suffering, voluntary acts against my health, attorney costs, intentional disregard of my (family’s) health, punitive damages, [and] personal injury.”
The landlords filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(8). They argued the trial court should dismiss Walker’s complaint because the same action was pending in small claims court.
By the time Marion Superior conducted a trial, the small claims court had decided that Walker had failed to prove by a preponderance of evidence that the apartment was uninhabitable or that she was constructively evicted. The landlords argued to the trial court that Walker had initiated two similar lawsuits against them, and the only difference was the amount of damages. Walker countered that the small claims court had only ruled on a portion of her claims and had advised that the issues pertaining to her health were out of its jurisdiction.
The Marion Superior Court granted the motion to dismiss. Walker appealed, arguing the ruling ran afoul of the principles of res judicata.
In Takila Walker v. Herman & Kittle Properties, Inc. and Washington Pointe Apartments, 21A-CT-284, the Court of Appeals agreed.
“The judgment of the Small Claims Court was limited solely to damages caused to Walker based on her claim that her apartment was uninhabitable, and the Small Claims decided nothing with regard to her other issues,” Judge Patricia Riley wrote. “Although Walker raised similar allegations in both actions, we find that the unappealed small claims order was res judicata only in relation to whether the Appellees breached the implied warranty of habitability. The order was not a judgment ‘on the merits’ sufficient to bar Walker’s other claims in her current action.”
Judge Elaine Brown wrote a separate concurring opinion, clarifying that on remand only the claim of “voluntary acts against my health” remains. As part of her appeal, Walker did not make an argument as to the other claims, so she has waived the viability of those claims.
Mental Health-Involuntary Commitment/Mootness
In the Matter of the Civil Commitment of E.F. v. St. Vincent Hospital and Health Care Center, Inc. d/b/a St. Vincent Stress Center
A woman’s appeal of her involuntary mental health commitment has been dismissed as moot because she has already been released from commitment. However, the Court of Appeals of Indiana split sharply in the decision, with the dissenting judge calling on the Indiana Supreme Court to clarify recent precedent on how appeals of temporary involuntary commitments should be decided.
The instant commitment case began in June, when the St. Vincent Stress Center in Indianapolis applied for emergency detention and involuntary commitment of E.F., who was allegedly suffering from a psychiatric disorder that prevented her from taking care of herself. In court documents, E.F.’s physician said she was manic and unable to control her diabetes, which had led to gangrene and a toe amputation. E.F. was also described as being paranoid, calling the police and spending large sums of money.
The Marion Superior Court, Probate Division, determined E.F. was gravely disabled and committed her to the stress center for 90 days. The court ordered that she was to be released on Sept. 7 at the latest.
E.F. appealed, arguing that the trial court erred in finding her gravely disabled and ordering her temporary commitment. Although she has already been released, E.F. argued her appeal raised “questions of great public interest that are likely to recur.”
“But, in her brief, E.F. does not identify any questions of great public interest likely to recur,” COA Judge Edward Najam wrote for the majority in In the Matter of the Civil Commitment of E.F. v. St. Vincent Hospital and Health Care Center, Inc. d/b/a St. Vincent Stress Center, 21A-MH-1332.
The majority, which also included Judge Leanna Weissmann, concluded E.F.’s appeal was moot and declined to reach the merits. The majority judges pointed to T.W. v. State, 121 N.E.3d 1039 (Ind. 2019), which held that “temporary commitment appeals should be, as a rule, dismissed as moot, though in rare circumstances a question of great public important may justify not dismissing the otherwise moot appeal.”
“E.F.’s appeal does not present such a rare circumstance,” Najam wrote.
“Indeed, E.F. ignores T.W. altogether and only mentions the mootness doctrine in a footnote,” the majority held. “… A brief should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues. Because E.F. does not argue that this appeal should be decided under any exception to the mootness doctrine, we cannot consider whether any such exception might apply here.”
But in a dissent, Judge Nancy Vaidik wrote that T.W. did not alter the “well-established doctrine” of reviewing temporary involuntary commitments “notwithstanding their mootness under the public-interest exception.”
Specifically, Vaidik pointed to In re Commitment of J.B., 766 N.E.2d 795 (Ind. Ct. App. 2002), which held that “[t]he question of how persons subject to involuntary commitment are treated by our trial courts is one of great importance to society.”
“The majority acknowledges our prior application of the public-interest exception to these cases but states that our Supreme Court in T.W. altered this standard to require that the challenging party explicitly show their specific case involves a great public interest,” Vaidik wrote. “But our case law makes clear such argument is not required, and at no point in T.W. does the Court purport to overrule this prior precedent or to establish a new analysis regarding what constitutes a great public interest.
“… Instead, the Court in T.W. addresses a completely different issue: whether a commissioner (as opposed to a judge) lacks the authority to enter a commitment order,” she continued. “T.W. involved a more specific issue of great public interest, and the Court addressed only that issue. That does not mean that J.B. and its progeny have been overruled.”
The majority addressed Vaidik’s dissent, countering that “while these appeals are undoubtedly important to each appellant, to paint the ‘great public importance’ exception with this broad of a brush would eviscerate the exception and require us to address every one of these cases on their merits although they are moot.”
“That approach is contrary to the Court’s holding in T.W. that appeals of temporary commitments are moot unless they involve an issue of great public importance,” Najam wrote for the majority. “And the Court in T.W. addressed only the one issue of great public importance presented in those consolidated appeals and did not address the other issues raised by the appellants, namely, the sufficiency of the evidence to support their commitments.”
Vaidik closed her dissent with a call for the Supreme Court to once again weigh in, saying a split had emerged on the COA as to how to apply T.W.
“This has led to some parties having their claims heard on the merits and others being dismissed without review, dependent entirely on which panel they are assigned,” she wrote. “Clarification from the Supreme Court as to the correct standard for these cases would alleviate these inequitable results.”
Criminal-Motion to Suppress/Constitutional Rights
Luis Posso, Jr. v. State of Indiana
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 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.
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 .
“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.
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.•