Crone, J.
Luis Posso, Jr., drove to the emergency room with his badly bruised, emaciated son, who was pronounced dead a short time later. Posso was questioned by law enforcement officers at the hospital and at the sheriff’s office, and he signed consent forms authorizing them to search his motel room, van, and cell phone. Posso was arrested and 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. Posso filed a motion to suppress the evidence seized during the searches, arguing that under the Indiana Constitution, he was entitled to the presence and advice of counsel before he made the decision to sign the consent forms, and he was not advised of this right. Posso also moved to suppress his statements to the officers, arguing that he was subjected to an impermissible “question-first” interrogation in violation of the United States Constitution. The trial court denied Posso’s motion.
In this interlocutory appeal, Posso argues that the trial court erred in denying his motion to suppress. Finding a state constitutional violation but not a federal constitutional violation, we affirm in part, reverse in part, and remand for further proceedings.
Posso was entitled to be advised of his Indiana constitutional right to the presence and advice of counsel before making the decision to consent to the searches of his motel room, van, and cell phone, and he was not advised of this right.
The first constitutional issue we address is whether Posso’s consents to the searches of his motel room, van, and phone were invalid, which would require the suppression of the evidence seized during those searches.
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The Dycus court further noted that Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), “is the seminal case for Indiana’s law on consent to searches” and that the Pirtle court “held that a person in police custody is entitled to the presence and advice of counsel prior to consenting to a search, and that the right, if waived, must be explicitly waived.”… Over the years, appellate courts have limited the application of the Pirtle “rule only to the weightiest intrusions.”
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In this case, the threshold question is whether Pirtle advisements were necessary for the searches of Posso’s motel room, van, and cell phone. With respect to the motel room and the van, the answer is definitively yes. See Harper v. State, 963 N.E.2d 653, 658 (Ind. Ct. App. 2012) (noting that “a hotel room is a ‘home’ for purposes of Article 1, Section 11 of the Indiana Constitution”), clarified on reh’g, 968 N.E.2d 843; Dycus, 108 N.E.3d at 306 (describing “unlimited and general searches” of homes and vehicles as “weighty intrusions” requiring Pirtle advisements). With respect to cell phones, no appellate court has yet had an opportunity to weigh in on the issue. Given that a cell phone – particularly a smartphone like Posso’s – may contain substantially more evidence, both in kind and quantity, than a person’s home or vehicle, we readily conclude that an unlimited and general search of a cell phone without probable cause is an equally weighty intrusion for which a Pirtle advisement is required. See Riley v. California, 573 U.S. 373, 396-97 (2014) (noting that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.”); Seo v. State, 148 N.E.3d 952, 960 (Ind. 2020) (parallel citation omitted) (quoting Riley, 573 U.S. at 393, and United States v. Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015)) (“Today’s smartphones ‘could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.’ And they can contain, in digital form, the ‘combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually and sometimes even sexually, in the owner’s life.’”).
We now must consider whether Posso was in custody when he signed the forms consenting to the searches. Posso argues that he was, and the State offers no response.
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When Detective Rushing presented Posso with the first consent form authorizing a search of his motel room and van, Posso had been advised of his Miranda rights and questioned by several officers about E.P.’s death, had been informed that officers were going to the motel and that his family would be brought to the hospital for questioning, had surrendered his van keys and driver’s license, and was sitting in the corner of a room with multiple officers standing between him and the door and other officers and security guards visible outside. We have little trouble concluding that a reasonable person in Posso’s circumstances would have believed that he was not free to resist the entreaties of the police, and therefore we conclude that Posso was in custody for purposes of Pirtle at that point. By the time Posso signed the second consent form authorizing a search of his phone, he had been transported to the sheriff’s office in a marked police vehicle and locked in an interview room. Clearly, Posso was in custody at that point as well.
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The next question we must answer is whether Posso was adequately advised of his right to the presence and advice of counsel before he consented to the searches.
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Unlike the DCS director with her advisement-of-rights form, Detective Rushing did not read the consent forms aloud to Posso 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 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. The State asserts that if Posso did not read the consent forms “before signing, that was his choice[,]” and that Article 1, Section 11 of the Indiana Constitution “regulates the reasonableness of police, not suspect, conduct.” Appellee’s Br. at 18. But, as Posso points out, Pirtle specifically places the burden on the State “to show that [the defendant’s] waiver [of his right to counsel] was explicit,” 263 Ind. at 29, 323 N.E.2d at 640, and the State failed to carry that burden here. See Sims v. State, 274 Ind. 495, 500, 413 N.E.2d 556, 559 (1980) (equating “explicitness” of Pirtle waiver of right to counsel with “the knowing quality of that waiver […] and not the voluntary quality of the decision to permit the search.”), overruled on other grounds by Wright v. State, 658 N.E.2d 563 (Ind. 1995). Consequently, we reverse the trial court’s denial of Posso’s motion to suppress the evidence seized during the searches of his motel room, van, and cell phone.
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Therefore, we affirm the trial court’s denial of Posso’s motion to suppress his statements to law enforcement officers, and we remand for further proceedings consistent with this decision.
Affirmed in part, reversed in part, and remanded
Bailey, J., and Pyle, J., concur.