Commonwealth v. Cawthron , 479 Mass. 612 ( 2018 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12322
COMMONWEALTH vs. KEITH CAWTHRON
(and three companion cases1).
Middlesex. February 6, 2018. - May 23, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
Controlled Substances. Constitutional Law, Admissions and
confessions, Investigatory stop. Due Process of Law,
Police custody. Evidence, Admissions and confessions.
Practice, Criminal, Motion to suppress, Admissions and
confessions.
Indictments found and returned in the Superior Court
Department on April 24, 2014.
Pretrial motions to suppress evidence were heard by Kenneth
W. Salinger, J., and a motion for reconsideration was considered
by him.
An application for leave to prosecute an interlocutory
appeal was allowed by Botsford, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
her to the Appeals Court. After review by the Appeals Court,
the Supreme Judicial Court granted leave to obtain further
appellate review.
1 One against Cawthron and two against Craig Flodstrom.
2
Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.
Lindsay Kanter, Committee for Public Counsel Services
(Daniel E. Callahan, Committee for Public Counsel Services, also
present) for Craig Flodstrom.
Thomas M. Glynn for Keith M. Cawthron.
GAZIANO, J. In this case, we consider whether police
officers were required to provide Miranda warnings prior to
questioning two individuals who had been detained in a
restaurant parking lot as part of a threshold inquiry into a
street-level drug transaction. A Middlesex County grand jury
indicted the defendants, Keith Cawthron and Craig Flodstrom, on
charges of trafficking in Oxycodone, in violation of G. L.
c. 94C, § 32E (c) (1), and conspiracy to traffic Oxycodone, in
violation of G. L. c. 94C, § 40. The defendants filed motions
to suppress statements made to detectives and pills found in one
of the defendants’ vehicles, arguing that they had been subject
to custodial interrogation without adequate Miranda warnings,
and the seizure of the pills was a result of custodial
statements given absent such warnings. A Superior Court judge
concluded that the defendants had been subject to custodial
interrogation without, in Cawthron's case, any warnings and, in
3
Flodstrom's case, an inadequate warning, and allowed the motions
to suppress.2
The Commonwealth filed a timely notice of appeal. A single
justice of this court allowed the Commonwealth's application for
leave to pursue an interlocutory appeal and reported the matter
to the Appeals Court. The Appeals Court issued an opinion
reversing the judgment of the Superior Court. See Commonwealth
v. Cawthron, 90 Mass. App. Ct. 828 (2017). We allowed the
defendants' petitions for further appellate review.
Applying the factors set out in Commonwealth v. Groome, 435
Mass. 201, 211–212 (2001), we conclude that the defendants were
not subject to custodial interrogation. Therefore, the Superior
Court judge's decision allowing the motions to suppress must be
reversed.
1. Background. We summarize the facts as found by the
motion judge following an evidentiary hearing. We indicate
explicitly those few facts the judge found that are not
supported by the record.
On April 12, 2013, Detective Michael Donovan of the
Tewksbury police department stopped at a convenience store on
2 The judge denied Flodstrom's motion to suppress statements
that he made when officers first approached him, before they had
asked any questions, but allowed the motion to suppress all
statements made after the officers began asking questions.
4
Route 133 in Tewksbury. Donovan was dressed in plain clothes
and was driving an unmarked vehicle. As he was walking across
the parking lot toward the store, Donovan overheard a man, later
identified as Cawthron, speaking on a cellular telephone outside
the store. Cawthron said that he was "going to pick them up
now," and asked, "How many do you want" and, "Do you want ten?"
Donovan suspected that Cawthron was arranging a narcotics
transaction. After purchasing a beverage in the store, Donovan
returned to his vehicle and waited for Cawthron to leave the
store. Donovan then followed Cawthron's vehicle as it left the
parking lot.
Cawthron traveled a short distance on Route 133, and then
turned into the parking lot of a fast food restaurant. After
briefly losing sight of the defendant's vehicle, Donovan located
it in a nearby steakhouse parking lot; Cawthron was standing
outside his vehicle, speaking on his cellular telephone.
Donovan parked his vehicle fifteen or twenty yards from
Cawthron's.
Donovan contacted Detective Lieutenant Ryan Columbus of the
Tewksbury police department and informed him of the
investigation. Columbus arrived, also in an unmarked vehicle,
and established surveillance from a nearby parking lot.
Approximately five minutes later, a black vehicle entered
the steakhouse parking lot and parked next to Cawthron's
5
vehicle. Flodstrom got out of this vehicle and approached
Cawthron; the men shook hands and exchanged items that Donovan
could not see. Based on these actions, the statement he had
overheard in the convenience store parking lot, and his
knowledge that the parking lots along Route 133 were often used
for illegal drug transactions, Donovan believed this to be a
hand-to-hand drug transaction.
Donovan got out of his unmarked vehicle, walked quickly to
where the two men were standing, and identified himself as a
police officer. He ordered the men not to move. At that point,
Flodstrom said, "[T]his is how I feed my family." Columbus
arrived at the scene shortly after Donovan had reached the
defendants. He and Donovan decided to separate the two men and
question them individually, before they had an opportunity to
construct a shared response.3 Donovan directed Flodstrom to the
far side of Flodstrom's vehicle; Cawthron was directed to go
with Columbus on the far side of Cawthron's vehicle. Each man
moved approximately five yards from where he stood before the
detectives arrived.
3 At the hearing on the motion to suppress, both detectives
testified that separating individuals for questioning is a
standard police tactic, to reduce the possibility that the
individuals would be able to coordinate their responses.
6
Once Donovan and Flodstrom were separated from Cawthron and
Columbus, Donovan gave Flodstrom an oral Miranda warning.4
Donovan then asked Flodstrom what had happened. Flodstrom
responded that he had sold 300 Oxycodone pills to his uncle,
Cawthron, for two dollars per pill. Flodstrom reiterated that
this was how he fed his children, and pulled $600 from his
pocket. After Flodstrom produced the money, Donovan placed him
in handcuffs and told him that he was under arrest.
While this interaction was taking place, Columbus spoke
with Cawthron in front of Cawthron's vehicle. Columbus
identified himself as a police officer and asked Cawthron what
he had purchased. Cawthron said that he had purchased pills for
two dollars each. Columbus asked where the pills were, and
Cawthron told him the pills were under the seat in his vehicle.
Columbus looked under the driver's seat and found a full pill
bottle. After retrieving the bottle, Columbus handcuffed
Cawthron, placed him under arrest, and read him his Miranda
rights. In response to the detective's further questions,
Cawthron said that he was acting as the middle man for a friend.
4 Rather than reading the warnings from a printed card,
Donovan gave them to the best of his ability from memory. At
the hearing on the motion to suppress, Donovan was unable to
recall exactly what he told Flodstrom.
7
After handcuffing Cawthron, Columbus took the pill bottle
to Donovan, who was standing with Flodstrom.5
Cawthron and Flodstrom were indicted by a Middlesex County
grand jury on charges of trafficking in over eighteen grams of
Oxycodone, G. L. c. 94C, § 32E (c) (1), and conspiracy to
traffic in Oxycodone, G. L. c. 94C, § 40.
Cawthron and Flodstrom filed motions to suppress their
statements and the evidence seized. After an evidentiary
hearing, the judge found that the detectives had reasonable
suspicion to stop the defendants and to conduct a threshold
inquiry; that the defendants were subjected to custodial
interrogation; and that the Commonwealth failed to prove that
either Flodstrom or Cawthron received adequate Miranda warnings.
Accordingly, the judge suppressed all of Cawthron's statements
and the pill bottle found in his vehicle, and ordered
Flodstrom's statements suppressed apart from his initial remark
upon the first detective's arrival that "this is how I feed my
family."6
5 The judge found that Columbus showed Donovan and Flodstrom
the pills before Flodstrom finished making his statements to
Donovan. As discussed infra, this finding is not supported by
the record.
6 The judge also found that Flodstrom had automatic standing
to challenge the search of Cawthron's vehicle, and thus
suppressed the pills found in that vehicle with respect to the
trafficking charge against Flodstrom, but not with respect to
8
The Commonwealth's motion to reconsider was denied. The
Commonwealth then filed an application in the county court for
leave to pursue an interlocutory appeal. A single justice of
this court allowed the Commonwealth to pursue an interlocutory
appeal in the Appeals Court. After the Appeals Court reversed
the allowance of the motions to suppress, see Cawthron, 90 Mass.
App. Ct. at 839, we allowed the defendants' petitions for
further appellate review.
The Commonwealth argues that the judge committed legal
error when he determined that the defendants were subjected to
custodial interrogation that necessitated Miranda warnings. For
the reasons that follow, we agree.
2. Discussion. "In reviewing a ruling on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error 'but conduct an independent review of his
ultimate findings and conclusions of law.'" Commonwealth v.
Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v.
Jimenez, 438 Mass. 213, 218 (2002).
The encounter between the officers and the defendants began
as a valid Terry-type stop, with an initial, brief inquiry into
the suspicious transactions that a police officer believed he
the conspiracy charge. The Commonwealth challenges the
determination of automatic standing. Because of the result we
reach, we need not decide this issue.
9
had seen. See Terry v. Ohio, 392 U.S. 1, 28-29 (1968). Such
stops are permissible where an officer has a reasonable
suspicion that a crime has been, is being, or is about to be
committed. See id. At that point, the interaction is casual,
and generally no Miranda warnings are necessary. See
Commonwealth v. Borodine, 371 Mass. 1, 4 (1976).
At some point, however, the nature of the interaction may
change, as officers begin to focus on a particular suspect.
Miranda warnings seek to protect an individual's "fundamental"
right under the Fifth Amendment to the United States
Constitution that "[n]o person . . . shall be compelled in any
criminal case to be a witness against himself." See Miranda v.
Arizona, 384 U.S. 436, 468 (1966). Miranda warnings require
that police officers inform suspects of their "right[s] to
remain silent, that any statement [they] do[] make may be used
as evidence against [them], and that [they have] a right to the
presence of an attorney, either retained or appointed," before a
custodial interrogation. Id. at 444. An interview is custodial
where "a reasonable person in the suspect's shoes would
experience the environment in which the interrogation took place
as coercive." Commonwealth v. Larkin, 429 Mass. 426, 432
(1999). Miranda warnings protect suspects from police-dominated
environments that were "created for no purpose other than to
subjugate the individual to the will of his examiner." See
10
Miranda, supra at 457; id. at 474 ("Without the right to cut off
questioning, the setting of in-custody interrogation operates on
the individual to overcome free choice in producing a
statement)."
Even where a suspect is temporarily seized, "[n]ot every
Terry-type investigative stop results in a custodial
interrogation." Commonwealth v. DePeiza, 449 Mass. 367, 375
(2007), citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984).
See Miranda, 384 U.S. at 477 ("General on-the-scene questioning
as to facts surrounding a crime or other general questioning of
citizens in the fact-finding process is not affected by our
holding"); Commonwealth v. Kirwan, 448 Mass. 304, 312 (2007)
(defendant was not in custody, despite not being free to leave,
where "[the] interrogation was brief and in the nature of a
preliminary investigation, and the defendant's detention was
minimal"). "the fact that the defendant was not free to leave
(at least until the performance of the field sobriety tests) did
not render the interrogation custodial." Commonwealth v. Ayre,
31 Mass. App. Ct. 17, 20 (1991). "A person is in custody
whenever [the person] is deprived of his [or her] freedom of
action in any significant way" (quotation and citation omitted).
Groome, 435 Mass. at 211. See Commonwealth v. Morse, 427 Mass.
117, 123 (1998), quoting United States v. Ventura, 85 F.3d 708,
712 (1st Cir. 1996) (custody is "a formal arrest or restraint on
11
freedom of movement of the degree associated with a formal
arrest"). See generally Grasso & McEvoy, Suppression Matters
under Massachusetts Law § 18-3[b] (2017).
To determine if a defendant was subjected to custodial
interrogation, "the court considers several factors: (1) the
place of the interrogation; (2) whether the officers have
conveyed to the person being questioned any belief or opinion
that that person is a suspect; (3) the nature of the
interrogation, including whether the interview was aggressive
or, instead, informal and influenced in its contours by the
person being interviewed; and (4) whether, at the time the
incriminating statement was made, the person was free to end the
interview by leaving the locus of the interrogation or by asking
the interrogator to leave, as evidenced by whether the interview
terminated with an arrest." Commonwealth v. Groome, 435 Mass.
at 211–212. "Rarely is any single factor conclusive."
Commonwealth v. Bryant, 390 Mass. 729, 737 (1984).
Applying the Groome factors to the circumstances here, we
conclude that the defendants have not met their burden of
showing that they were in custody when they made the
incriminating statements. See Larkin, 429 Mass. at 432.
a. Location of interviews. To determine if the location
of an interrogation contributed to a coercive environment, we
consider the circumstances "from the point of view of the
12
defendant." See Commonwealth v. Conkey, 430 Mass. 139, 144
(1999), S.C., 443 Mass. 60 (2004) and 452 Mass. 1022 (2008).
The detectives questioned the defendants in a public parking
lot, during the day, and the defendants were neither handcuffed
nor otherwise physically restrained. This environment is not
police-dominated. See Vanhouton v. Commonwealth, 424 Mass. 327,
331-332 & n.7, cert. denied, 522 U.S. 834 (1997), quoting
Pennsylvania v. Bruder, 488 U.S. 9, 11 n.3 (1988) (suspect
stopped on suspicion of operating motor vehicle while under
influence of alcohol and subject to field sobriety tests on side
of road was not in custody, because, in part, "traffic stops
commonly occur in the 'public view,' in an atmosphere far 'less
"police dominated" than that surrounding the kinds of
interrogation at issue in Miranda itself'"). Cf. United States
v. Jones, 187 F.3d 210, 218 (1st Cir. 1999) ("a public highway
is a neutral setting that police officers are not in a position
to dominate").
In this case, the detectives instructed the defendants to
move approximately five yards from where they had been
conversing in the restaurant parking lot, so that each detective
would be able to speak with one of the defendants individually.7
7 Flodstrom argues that the defendants' compliance with this
instruction demonstrates that they did not believe they had any
choice but to obey the detectives' orders. Even assuming that
13
This movement did not result in a coercive atmosphere.8 See
Vanhouton, 424 Mass. at 331-332 (officer's instruction to driver
to get out of vehicle and perform field sobriety tests did not
create coercive atmosphere).
Other courts likewise have concluded that moving
individuals a short distance, so as to interview them
separately, does not constitute custodial interrogation. In
United States v. Campbell, 741 F.3d 251, 267 (1st Cir. 2013),
for example, three individuals were traveling in a vehicle that
was stopped by police. Approximately five police officers
"split up and questioned the defendants separately, such that
each defendant was questioned by at most two officers." Id.
The United States Court of Appeals for the First Circuit held
that the officers' decision to separate the defendants, even
where some were interrogated by multiple police officers, did
not create an "overwhelming" environment that was custodial and
the movement was forced, however, does not necessarily result in
a conclusion that the defendants were in custody for purposes of
Miranda. See Larkin, 429 Mass. at 432 (defendants have burden
to establish that they were subject to custodial interrogation;
restriction on freedom of movement does not necessarily amount
to custody).
8 Flodstrom also argues that his difficulty walking added to
the coercive nature of the situation. The judge did not make
any findings about Flodstrom's physical condition, although
Donovan testified that Flodstrom had a limp and appeared to have
some difficulty moving. No evidence in the record indicates
that the short distance involved placed a significant burden on
Flodstrom, such that his detention was custodial.
14
necessitated Miranda warnings. See id. We agree; the act of
separating defendants briefly for individual questioning does
not create an inherently coercive environment.
b. Whether the detectives conveyed a belief that the
defendants were suspects. If the detectives had conveyed to the
defendants that they were suspects, that might support a
determination that the defendants were in custody before they
made the incriminating statements. See Commonwealth v. Simon,
456 Mass. 280, 287-288, cert. denied, 562 U.S. 874 (2010). When
they approached the defendants, one of the detectives asked one
of the defendants what he had just purchased, a question the
defendants maintain indicates that the detectives believed the
defendants had been involved in a public drug transaction. We
do not agree. The interview occurred as part of the detectives'
"brief, preliminary effort to confirm or dispel a suspicion"
that the defendants had purchased and sold drugs. See Kirwan,
448 Mass. at 311.
We conclude that, in their initial questioning, the
detectives did not convey a suggestion that the defendants were
suspects; the question could have referred to many types of
innocent activities. At most, it was a vague and unformed
suspicion of some illicit activity. In Commonwealth v.
Callahan, 401 Mass. 627, 630 (1988), officers also asked a
defendant "what happened," after they discovered him near a dead
15
body; the court concluded that he was not in custody, albeit
that he was not free to leave. In Commonwealth v. Shine, 398
Mass. 641, 648–649 (1986), the court concluded that a defendant
was not in custody when he made a statement to police,
notwithstanding the interrogating officer's uncommunicated
intent to arrest the defendant, where the officer asked only
"natural preliminary questions designed to determine the
defendant's identity and what he knew about the crime." In
Simon, 456 Mass at 287, the court determined that a defendant
was in custody because, inter alia, police officers began a
conversation with the defendant by informing him that he was
suspected of shooting the victim. In this case, by contrast,
the evidence does not clearly establish that the detectives told
the defendants they were suspected of a crime.
Although Columbus apparently suspected that Cawthron had
purchased drugs, based on the conversation that Donovan
overheard in the convenience store parking lot, this
"unarticulated suspicion[] contribute[d] nothing to the
objective circumstances of the encounter." See Groome, 435
Mass. at 212 n.13; Commonwealth v. Gendraw, 55 Mass. App. Ct.
677, 683 (2002) ("although the officers may have believed that
the defendant was a suspect . . . the detectives did not convey
any such belief to the defendant"). Columbus's question to
Cawthron, "What did you just buy?" may suggest the topic of his
16
preliminary investigation. In determining whether a suspect was
in custody at the time a statement was made, however, police
officers' questions are relevant if they "affected how a
reasonable person in that position would perceive his or her
freedom to leave." See Stansbury v. California, 511 U.S. 318,
325 (1994). Columbus's question would not cause a reasonable
person to feel that his freedom to leave had been curtailed to
the degree associated with formal arrest.
The judge found that a reasonable person in Flodstrom's
situation would have believed that police suspected him of a
crime, in part, because Columbus brought over the bottle of
pills to show Donovan, in Flodstrom's line of sight, before, or
during, Donovan's questioning of Flodstrom. This factual
finding is unsupported by the evidence introduced at the
hearing, and, therefore, we decline to defer to it.9
9 At the end of his cross-examination of Donovan, Cawthron's
counsel asked Donovan if Columbus brought the pills over after
Flodstrom had told Donovan about the exchange. Donovan first
replied, "Yes, I believe so;" when asked if he was sure, Donovan
said, "Yes. [Flodstrom] had stated that he had sold [Cawthron]
pills and handed me money." When pressed about the timing,
Donovan responded, "I don't remember exactly when it happened,
no." On redirect examination, the prosecutor again pursued this
line of inquiry, asking, "[Y]ou were just asked if [Columbus]
had either informed you that he had recovered the bottle of
pills, or he had shown that to you. And just so I'm clear, was
that before or after [] Flodstrom had produced the six hundred
dollars to you?" Donovan responded, "After."
17
In response to multiple questions from both defense counsel
and the Commonwealth, Donovan testified that Columbus showed him
the pill bottle after Flodstrom had answered his questions and
produced the money from his pocket. Donovan did give one
equivocal response on cross-examination, but never stated that
he was shown the pill bottle before or while Flodstrom was
answering his initial questions or producing the money from his
pocket. No other evidence was introduced about the timing.
While a motion judge may decline to credit a witness's
testimony, the judge may not make "findings that [are]
inconsistent with the uncontradicted testimony of the" witness,
where "there was no evidence to support those findings."
Commonwealth v. Knowles, 451 Mass. 91, 93 n.2 (2008).
In concluding that Flodstrom was in custody, the judge also
relied in part on Donovan's decision to provide Flodstrom with
some form of Miranda warning. "[T]he reading of the Miranda
rights does not automatically demonstrate seizure."
Commonwealth v. Martinez, 458 Mass. 684, 695 (2011). This court
has encouraged police officers to give Miranda warnings before
"the exact moment when the warnings are constitutionally
required." See Commonwealth v. Raymond, 424 Mass. 382, 393 n.9
(1997), S.C., 450 Mass. 729 (2008). We reiterate that a
decision to give the warnings does not indicate that a defendant
is, in fact, in custody.
18
c. Tone of interviews. On the third Groome factor, the
judge found that the conversations between the defendants and
the detectives "were not relaxed or conversational." Even so,
nothing in the record suggests that they were "aggressive,"
"persistent," or "harsh," which would support a conclusion that
the defendants had been subject to a custodial interrogation.
See Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 155 (2000).
The uncontroverted testimony from the detectives was that the
interactions with the defendants occurred in a "regular tone"
and were "very cooperative."
In concluding that the defendants were in custody, the
judge relied in part on the fact that "the officers asked
questions, making clear that they expected to receive prompt
answers, and the [d]efendants responded to each inquiry.
Neither defendant was ever told that they were free to walk
away, that they could terminate their interrogation whenever
they wished . . . or anything else to offset the inherently
coercive nature of the situation."
Having concluded that the location of the interrogations
was not coercive, we do not view the other facts identified by
the judge, that the detectives wore "police badge[s]," and "were
armed," as creating an inherently coercive environment. The
detectives did not display their weapons. In the absence of
evidence beyond the detectives' subjective suspicions that the
19
defendants had committed a crime, which are irrelevant for these
purposes, we conclude that the tone "was neither aggressive nor
confrontational," and that questioning was appropriate fact
finding to confirm or dispel the detectives' belief that they
had observed a drug transaction. See Commonwealth v. Hilton,
443 Mass. 597, 610 (2005), S.C., 450 Mass. 173 (2007). Contrast
Coleman, 49 Mass. App. Ct. at 155 (interrogation was
"aggressive and persistent" where "defendant's denials were
scorned and overridden," "substance of what was said was harsh
and intended by the questioner to be so").
d. Whether the defendants were free to leave. We turn to
the final Groome factor, whether the defendants were free to end
the interview by asking to terminate the interview or, simply,
by leaving. The detectives testified that the defendants were
not free to leave, and that they would have prevented the
defendants from leaving if they had tried. Further, the
defendants were arrested at the end of the interrogations, after
each provided statements and physical evidence of a drug
transaction.
While this factor weighs in favor of a conclusion that the
defendants were in custody, that conclusion does not necessarily
follow. An "arrest after an incriminating statement has been
obtained, by itself, [does not] label[] as custodial the
interrogation that precedes the incriminating statement"
20
(citation omitted). Bryant, 390 Mass. at 742 n.15. Cf.
Commonwealth v. Lawrence, 404 Mass. 378, 386–387 (1989)
(declining to suppress statements made to officer during search
of home, because defendant was not in custody at time of making
statements, but, rather, was arrested after police found
evidence during search). "Not all restraints on freedom of
movement amount to custody for purposes of Miranda." Howes v.
Fields, 565 U.S. 499, 509 (2012). "Determining whether an
individual's freedom of movement was curtailed . . . is simply
the first step in the analysis." Id. We balance the fact that
the defendants were not free to leave the interview, and were
arrested at its conclusion, against the other Groome factors. A
single factor rarely is determinative. See Bryant, 390 Mass. at
737. The United States Supreme Court has acknowledged that "few
motorists would feel free either to disobey a directive to pull
over or to leave the scene of a traffic stop without being told
they might do so," but nonetheless has concluded that traffic
stops are not custodial and Miranda warnings are not required in
those circumstances. See Berkemer, 468 U.S. at 436.
In reaching a contrary conclusion, the judge relied on
Simon, 456 Mass. at 287, and our previous statement that "[t]he
critical question in determining whether an individual is in
custody is whether a reasonable person in the individual's
position would feel free to leave." Id., citing Commonwealth v.
21
Damiano, 422 Mass. 10, 13 (1996). While this may be a critical
factor, today we clarify that it cannot be the determinative
factor. Custody is "a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest," see
Morse, 427 Mass. at 123; inability to leave may support a
finding of custody, but a Terry-type stop, without more, is not
custodial. See Howes, 565 U.S. at 509. See also Berkemer, 468
U.S. at 436.
This case is unlike Simon, 456 Mass. at 287. There,
officers began their conversation with the defendant by telling
him that he had been identified as the person who shot the
victim. Id. at 283. Although the conversation took place at
the defendant's attorney's office, the defendant was aware that
six or seven police officers had arrived and were waiting
outside for him. Id. at 287. In those circumstances, the
defendant's freedom of movement was curtailed to a degree
associated with formal arrest, because he was not free to leave
a building that he knew to be surrounded by police officers, and
because he was informed that he was a suspect. See id. at 283,
287. Those factors are absent from this case. Here, the
defendants were not told that they were suspected of a crime,
and the discussions were held one-on-one, in an open, public
space, rather than inside a building surrounded by other
officers.
22
The circumstances here are similar to those in Kirwan, 448
Mass. at 312, where we affirmed a Superior Court judge's
determination that a defendant was not in custody, despite the
judge's determination that the defendant was not free to leave
his home, where he was speaking with an officer. In that case,
the "interrogation was brief and in the nature of a preliminary
investigation, and the defendant's detention was minimal." Id.
The defendants in this case likewise were subject to a minimal
detention when officers asked them to move a few yards; the
detectives conducted a very preliminary investigation, by asking
what happened and what one defendant had purchased. Each
defendant, at that preliminary stage of the investigation, then
offered the incriminating statements about purchasing and
selling pills that resulted in their arrests.
Because we conclude that the environment was noncoercive,
as in Kirwan, the fact that the defendants were not free to
leave does not transform the stops into custodial
interrogations, where the other Groome factors weigh against
custody. See Vanhouton, 424 Mass. at 332 (defendant suspected
of drunk driving and subjected to field sobriety tests not in
custody, despite not being free to leave); Callahan, 401 Mass.
at 630 (defendant was not in custody, despite officers asking
him "what happened" and him not being free to leave after
officers discovered dead body); Bryant, 390 Mass. at 738–740
23
(defendant admitted to shooting victim and was likely not free
to leave his home where he was speaking with police officers,
but was not in custody immediately following confession when
police officer asked him if he had anything more to say).
In DePeiza, 449 Mass. at 375 & n.5, this court found that a
Terry-type stop was noncustodial, even though the officers had
seized the defendant for a frisk and the officers then asked
him, "Do you have a gun or do you have a firearm?" In holding
that the environment was not police-dominated, the court
concluded that the officers' question did not convey that they
suspected the defendant of a crime, the tone of the interview
was conversational, and at no point did the encounter become
aggressive. Id. at 376. Here, too, the interviews were
conversational, the interaction was not aggressive, and
Columbus's question, "What did you just buy?" did not convey to
Cawthron that he was suspected of a crime. We conclude that,
absent additional factors, the defendants were not in custody
when they made their statements to police.
3. Conclusion. The order allowing the defendants' motions
to suppress is reversed. The matter is remanded to the Superior
Court for further proceedings.
So ordered.