Heard: November 10, 2016.
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.
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
M. Glynn for Keith M. Cawthron.
E. Callahan, Committee for Public Counsel Services, for Craig
Present: Trainor, Meade, & Hanlon, JJ.
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. 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
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.
Michael Donovan and Detective Lieutenant Ryan Columbus of the
Tewksbury police department testified at the motion
hearing. The motion judge made detailed
findings of fact to support his order, as summarized below.
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.
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.
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
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 ...