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Commonwealth v. Cawthron

Appeals Court of Massachusetts, Middlesex

January 6, 2017

COMMONWEALTH
v.
KEITH CAWTHRON (and three companion cases[1]).

          Heard: November 10, 2016.

         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 Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.

          Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

          Thomas M. Glynn for Keith M. Cawthron.

          Daniel E. Callahan, Committee for Public Counsel Services, for Craig Flodstrom.

          Present: Trainor, Meade, & Hanlon, JJ.

          MEADE, J.

         A Middlesex County grand jury indicted the defendant, Keith M. Cawthron, and the codefendant, Craig Flodstrom, for trafficking in an amount more than eighteen and less than thirty-six grams of oxycodone, in violation of G. L. c. 94C, § 32E(cO (1), and conspiracy to traffic oxycodone, in violation of G. L. c. 94C, § 40. Prior to trial, the defendants moved to suppress the oxycodone and statements they made at the time they were stopped by the police. After conducting an evidentiary hearing, the motion judge issued findings and an order that allowed Cawthron's motion to suppress in full, and allowed Flodstrom's motion to suppress in part and denied it in part.[2] The Commonwealth timely noticed an appeal, and a single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and reported the matter to this court. See G. L. c. 278, § 28E; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).

         This appeal presents the question whether the conduct of the police officers, during the course of an investigatory stop, elevated that stop to one of custodial interrogation requiring the recitation of Miranda rights. The motion judge determined that it did. We reverse.

         1. Background.

         Detective Michael Donovan and Detective Lieutenant Ryan Columbus of the Tewksbury police department testified at the motion hearing.[3] The motion judge made detailed findings of fact to support his order, as summarized below.

         During the afternoon of April 12, 2013, Donovan stopped at a convenience store on Route 133 in Tewksbury to buy something to drink. Donovan was dressed in plain clothes and driving an unmarked car. As he approached the store, Donovan overheard Cawthron speaking to someone on his cellular telephone in the parking lot. Cawthron said, "I'm going to pick them up now. How many do you want? Do you want ten?" Based on his training and experience, Donovan reasonably believed that the discussion related to the sale of illegal narcotics. Donovan made note of the New Hampshire vanity license plate on the black Ford sport utility vehicle (SUV) Cawthron was driving, and followed the SUV as it left the parking lot.

         Donovan followed Cawthron on Route 133, first to a McDonald's restaurant, where Donovan temporarily lost sight of Cawthron, and then minutes later to a LongHorn Steakhouse parking lot where Donovan saw Cawthron's SUV with the same license plate. Donovan was able to park his unmarked car about fifteen to twenty yards away from Cawthron's SUV. While he followed Cawthron, Donovan contacted Columbus, who arrived in an unmarked car and began surveillance from an adjacent hotel parking lot. The detectives were aware that the parking lots in this area of Route 133 were often used as meeting points for drug trafficking, and they had made many arrests for such offenses in this area.

         From his vantage point, Donovan watched Cawthron speaking on his cellular telephone for five minutes. After that time, Flodstrom arrived and parked his black Ford Escape next to Cawthron's SUV. Flodstrom got out and approached Cawthron who was outside his SUV. The two men stood and spoke to one another near their cars. From his vantage point fifteen to twenty yards away, Donovan saw Flodstrom and Cawthron shake hands and exchange items. While Donovan could not see what the items were, based on what he earlier heard Cawthron say at the convenience store, his knowledge of the area along Route 133, and his training and experience, he believed that he had just witnessed a hand-to-hand drug transaction.

         At this point, Donovan got out of his car and quickly approached Cawthron and Flodstrom. Within one minute, Columbus drove from the neighboring parking lot to join Donovan with the defendants. Donovan was wearing his police badge around his neck and identified himself to the defendants as a police officer. He did not draw his weapon, but he ordered the defendants to stay where they were. Flodstrom said, "[T]his is how I feed my family, " or words to that effect. When Columbus approached on foot, he also was dressed in plain clothes with his badge displayed. The detectives separated the two defendants, each five yards from the other, "before they had a chance to get their stories straight." Without touching him, Donovan instructed Flodstrom to come with him to the side of ...


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