Commonwealth v. Cawthron , 90 Mass. App. Ct. 828 ( 2017 )

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revision and are superseded by the advance sheets and bound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
15-P-1751 Appeals Court
COMMONWEALTH vs. KEITH CAWTHRON (and three companion cases1).
No. 15-P-1751.
Middlesex. November 10, 2016. - January 6, 2017.
Present: Trainor, Meade, & Hanlon, JJ.
Controlled Substances. Practice, Criminal, Motion to suppress,
Admissions and confessions. Evidence, Admissions and
confessions. Constitutional Law, Admissions and
confessions, Investigatory stop. Due Process of Law,
Police custody.
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.
1
One against Cawthron and two against Craig Flodstrom.
2
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(c)(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.
2
The Commonwealth's motion to reconsider was denied.
3
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
3
The motion judge found the testimony of the two detectives
to be credible to the extent their testimony was "consistent
with the [judge's] express findings of fact."
4
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
5
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
Flodstrom's car. Columbus had Cawthron, who stood outside his
SUV, join him on the far side of Cawthron's SUV. Cawthron was
"very cooperative" and "compl[ia]nt."
After Donovan and Flodstrom moved away from the other two,
Donovan provided Flodstrom with Miranda warnings that the motion
judge found to be incomplete.4 While the motion judge did not
specify how the warnings were deficient, he did find that
Donovan did not read the rights to Flodstrom but merely recited
4
The motion judge found that "Donovan gave some sort of
oral Miranda warnings to Flodstrom. Donovan did not read the
warnings from a printed card. He instead did his best to recite
them from memory." However, these findings are not supported by
the record. Donovan testified that Flodstrom "was read his
Miranda rights." When asked by the motion judge to clarify
where in the sequence of events he "read" Flodstrom his Miranda
rights, Donovan clarified that Flodstrom was "read his Miranda
rights" after he and Cawthron were separated by the detectives.
Later, Donovan testified that after Flodstrom received his
Miranda warnings, Donovan asked if Flodstrom understood those
rights, and he indicated that he did. There is simply no
evidence to support the judge's finding that Donovan did not
read the Miranda rights, that those rights were incomplete, or
that Donovan recited them from memory. Given our resolution of
the case, this requires no further discussion.
6
them from his memory. As such, the motion judge found that the
Commonwealth failed to prove that Donovan informed Flodstrom of
every necessary part of the Miranda warnings. Without complete
Miranda rights, and no request to Flodstrom if he wished to
waive his rights, or whether he understood his rights,5 the
motion judge found that no proper waiver occurred before
Flodstrom made a statement.6
In a "[m]edium" or "regular tone," Donovan asked Flodstrom
what had just occurred between him and Cawthron. In response,
Flodstrom admitted that he had sold oxycodone pills to his uncle
(Cawthron) for two dollars per pill, and again stated that this
was how he fed his family. When asked for the money, Flodstrom
retrieved $600 in cash from his pocket and gave it to Donovan.
5
Although the motion judge credited Donovan's testimony
that nothing led him to believe that Flodstrom was under the
influence of drugs or alcohol, the judge nonetheless found that
Donovan "took no affirmative steps to ensure that Flodstrom's
mind was clear and that he was able to understand his Miranda
rights and to knowingly and intelligently waive them."
6
The motion judge found that the Commonwealth "failed to
prove beyond a reasonable doubt that Donovan remembered to
inform Flodstrom of every necessary part of the Miranda
warnings." However, because "[n]o prescribed set of words must
be used to provide the warnings required by the Miranda case,"
Commonwealth v. Ghee, 414 Mass. 313, 318 (1993), this misstates
the Commonwealth's burden of proof. Rather, the burden is on
the Commonwealth to establish "beyond a reasonable doubt, in the
totality of the circumstances," that a defendant's waiver of his
Miranda rights "was voluntary, knowing, and intelligent, and
that his statements were voluntary." Commonwealth v. Brown, 474
Mass. 576, 581 (2016), quoting from Commonwealth v. Auclair, 444
Mass. 348, 353 (2005). Again, given our resolution of the case,
this requires no further discussion.
7
Flodstrom told Donovan he had just sold 300 pills to Cawthron.
Donovan placed him under arrest. During Donovan's conversation
with Flodstrom, neither of them raised their voices.
While this was occurring, Columbus identified himself as a
police officer and asked Cawthron, "What did you just buy?"
Cawthron admitted that he had bought pills from Flodstrom for
two dollars each. When asked, Cawthron told Columbus that the
pills were under the seat of his SUV. Without permission from
Cawthron, Columbus opened the door to the SUV and found the pill
bottle under the driver's seat. Columbus then placed Cawthron
under arrest and read him his Miranda rights. After further
questioning, Cawthron told Columbus that he was meeting a friend
and that he was just acting as the "middle man." Prior to
handcuffing and placing Cawthron under arrest, Columbus
characterized the tone of their conversation as "[v]ery
cooperative." Columbus never raised his voice and never
"reveal[ed]" his service weapon.
After placing Cawthron under arrest, Columbus showed
Donovan the pill bottle in front of Flodstrom, and then gave it
to Donovan. The motion judge found that this occurred while
Donovan was still questioning Flodstrom and before he was placed
under arrest. The motion judge found that Donovan placed
Flodstrom under arrest based on what he had told Donovan and the
discovery of the pill bottle in Cawthron's SUV. The motion
8
judge "infer[red] and f[ound]" that Columbus searched Cawthron's
SUV and seized the pill bottle before Donovan finished reciting
the Miranda warnings to Flodstrom, and before Flodstrom told
Donovan that he had just sold the pills to Cawthron.
The motion judge further found that neither detective told
the defendants that they were free to leave, that they could
stop questioning at any time, or that they would be free to
leave after they were asked a few questions. The motion judge
added that the detectives made no attempt to record the
interviews on a "smart" cellular telephone or by some other
recording device. After the defendants were driven away by
other officers, a further search of the defendants' cars proved
fruitless.
2. Discussion. When reviewing a motion to suppress, "we
adopt the motion judge's factual findings absent clear error."
Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008), citing
Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). "We take
the facts from the judge's findings following a hearing on the
motion to suppress, adding those that are not in dispute, and
eliminating those that, from our reading of the transcript, are
clearly erroneous." Commonwealth v. Castillo, 89 Mass. App. Ct.
779, 781 (2016), quoting from Commonwealth v. Wedderburn, 36
Mass. App. Ct. 558, 558-559 (1994). "A finding is clearly
erroneous when 'although there is evidence to support it, the
9
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.'"
Commonwealth v. Castillo, supra, quoting from Green v. Blue
Cross & Blue Shield of Mass., Inc., 47 Mass. App. Ct. 443, 446
(1999). "Our review of the application of constitutional
principles to those facts, however, is plenary." Commonwealth
v. Watts, 74 Mass. App. Ct. 514, 516-517 (2009), quoting from
Commonwealth v. Kaupp, 453 Mass. 102, 105 (2009).
The Fifth Amendment to the United States Constitution,
which is applicable to the Commonwealth by virtue of the
Fourteenth Amendment, see Malloy v. Hogan, 378 U.S. 1, 6 (1964);
Commonwealth v. Gelfgatt, 468 Mass. 512, 519 n.12 (2014),
provides that "[n]o person . . . shall be compelled in any
criminal case to be a witness against himself." In Miranda v.
Arizona, 384 U.S. 436 (1966), the United States Supreme Court
adopted a set of prophylactic measures to protect a suspect's
Fifth Amendment right from the "inherently compelling pressures"
of custodial interrogation. Id. at 467. See Commonwealth v.
Simon, 456 Mass. 280, 285 (2010). The Court observed that
"incommunicado" interrogation in an "unfamiliar," "police-
dominated atmosphere" involves psychological pressures that
"work to undermine the individual's will to resist and to compel
him to speak where he would not otherwise do so freely."
Miranda v. Arizona, supra at 456-457, 467. Consequently, the
10
Court reasoned that "[u]nless adequate protective devices are
employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can truly
be the product of his free choice." Id. at 458.
Here, the motion judge concluded that "the police subjected
Cawthron and Flodstrom to custodial interrogation and were
therefore required to give full and complete Miranda warnings
before questioning either defendant." We disagree.7 Whether the
police have conducted custodial interrogation of a suspect is a
question of Federal constitutional law. See Commonwealth v.
Morse, 427 Mass. 117, 123 (1998); Commonwealth v. Sneed, 440
Mass. 216, 220 n.7 (2003). See also Grasso & McEvoy,
Suppression Matters Under Massachusetts Law § 18-2[d], at 18-14
(2016). It is the defendant's burden to establish the necessary
facts to prove custody. Commonwealth v. Larkin, 429 Mass. 426,
432 (1999).8 The test is an objective one. Ibid. See Stansbury
7
The motion judge properly determined that the initial stop
of the defendants was justified based on Detective Donovan's
reasonable suspicion that he had witnessed an illegal drug
transaction. See Commonwealth v. Santiago, 470 Mass. 574, 579
(2015). Also, given the result we reach, there is no need to
address the question whether Flodstrom had "automatic standing"
to challenge the recovery of the pills from Cawthron's SUV.
Commonwealth v. Amendola, 406 Mass. 592, 601 (1990).
8
Only after a defendant has carried that burden must the
Commonwealth demonstrate that he knowingly and intelligently
waived his privilege against self-incrimination. See Miranda v.
Arizona, supra at 475; Commonwealth v. Alcala, 54 Mass. App. Ct.
49, 53 (2002).
11
v. California, 511 U.S. 318, 319 (1994) ("an officer's
subjective and undisclosed view concerning whether the person
being interrogated is a suspect is irrelevant to the assessment
whether the person is in custody").
"The crucial question is whether, considering all the
circumstances, a reasonable person in the defendant's position
would have believed that he was in custody." Commonwealth v.
Groome, 435 Mass. 201, 211 (2001). In determining whether a
defendant was in custody, "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." Id. at 211-212.
Here, the motion judge found:
"Given the totality of the circumstances, any reasonable
person in the same situation would have understood that
they were not free to leave, would have perceived each
officer's questions as interrogations compelled under the
implicit threat of force, not as relaxed or friendly
conversations, and would therefore have experienced the
interrogation as coercive."
12
As a result, the motion judge determined that Miranda warnings
should have been provided to the defendants prior to any
questioning.
a. Clearly erroneous findings. As an initial matter, the
Commonwealth claims that some of the motion judge's findings of
fact are unsupported by the record. We agree. The judge found
that the detectives' interactions with the defendants were not
"relaxed or friendly conversations." However, the detectives
(the only witnesses who testified at the evidentiary hearing)
provided no testimony to support such a finding. Rather,
Detective Donovan testified that when he spoke to Flodstrom, he
did so in a "[m]edium, just regular tone." Donovan told
Flodstrom, "[C]ome over here; I want to talk to you." Detective
Columbus testified that during his conversation with Cawthron,
he never raised his voice. Columbus stated that Cawthron was
"just standing there," and characterized him as "compl[ia]nt."
Moreover, both detectives were in plain clothes, with their
badges displayed, but with their guns remaining holstered the
entire time. There was no evidence to the contrary suggesting
any type of aggressive questioning. We, therefore, eliminate
from our analysis the judge's finding that the conversations
were not "relaxed or friendly" as clearly erroneous. See
Commonwealth v. Wedderburn, 36 Mass. App. Ct. at 558-559.
13
Also, the judge found that the detectives made it known to
Flodstrom that he was a suspect by Donovan giving Flodstrom
"some sort of oral Miranda warnings,"9 and that during the
initial questioning of Flodstrom, Columbus indicated that he
found the pill bottle in Cawthron's SUV and handed the pill
bottle to Donovan in front of Flodstrom. However, the record
reflects that when asked by both the Commonwealth and defense
counsel whether Flodstrom handed over the money before or after
Columbus found the pill bottle, Donovan stated that Flodstrom
answered the questions and handed over the money prior to
Columbus arriving with the pill bottle. Thus, the judge's
contrary finding is also clearly erroneous. See Commonwealth v.
Knowles, 451 Mass. 91, 93 n.2 (2008) (motion judge, without
benefit of transcript, made several findings inconsistent with
testimony of officer, which were deemed "clearly erroneous").10
9
See note 4, supra. Also, in Flodstrom's motion to
suppress, he claimed a violation of Commonwealth v.
DiGiambattista, 442 Mass. 423, 441 (2004). The motion judge
noted that had Donovan recorded on a "smart phone" his
conversation with Flodstrom, there would be a record regarding
the completeness of the Miranda warnings. As Flodstrom does not
pursue the claim on appeal, we note that DiGiambattista applies
only to a defendant's "statement that is the product of a
custodial interrogation or an interrogation conducted at a place
of detention (e.g., a police station)." Id. at 447. As we
conclude that the defendants were not in custody, and that a
public restaurant parking lot would not likely qualify as a
place of detention, DiGiambattista is not applicable here.
10
Here, the motion judge's memorandum and order on the
defendants' motions to suppress was dated April 21, 2015. The
14
b. Terry stop. The motion judge erred in concluding that
the questioning of the two defendants during a Terry stop, see
Terry v. Ohio, 392 U.S. 1 (1968), amounted to custodial
interrogation. Other than the order not to move, the motion
judge "points to no words or actions of the [detectives] that
could have transformed the nature of the encounter from informal
to aggressive" prior to the detectives' declarations that they
were placing the defendants under arrest. Commonwealth v.
DePeiza, 449 Mass. 367, 376 (2007). The detectives' questions
were not accusatory. The detectives "did not imply that the
defendant[s were] suspected of a crime merely by asking"
Cawthron what he had just bought or Flodstrom what had just
occurred. Ibid. See Commonwea1th v. Callahan, 401 Mass. 627,
630 (1988) ("Suspicion had not focused on the defendant, and the
questioning was neither aggressive nor overbearing").
The motion judge found that by the time the detectives each
questioned a defendant by the side of his car they were in
custody for purposes of Miranda because "[b]y this time any
reasonable person in the same situation would understand that
Donovan and Columbus were armed police officers who were
prepared to back up Donovan's commands with physical force, if
need be." In support of this conclusion, the motion judge noted
court reporter's certificate on the transcript is dated April
10, 2015, making it likely that the judge did not have the
benefit of the transcript, which we understand is the norm.
15
that Donovan walked quickly toward the defendants, with his
badge displayed, identifying himself as a police officer, and
ordered the defendants to stay where they were. The motion
judge also noted that Columbus arrived within one minute, that
he also walked quickly towards the defendants, and that
Flodstrom was ordered to go with Donovan and Cawthron ordered to
go with Columbus. The judge found that Columbus conveyed to
Cawthron that he was a suspect by asking him, "[W]hat did you
just buy?" and that Donovan conveyed to Flodstrom that he was a
suspect by giving him "some form of a Miranda warning" before
questioning. However the motion judge's conclusion
misapprehends "custody" jurisprudence.
In the Miranda case itself, 384 U.S. at 477-478, Chief
Justice Earl Warren clarified that:
"[g]eneral 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. It is
an act of responsible citizenship for individuals to give
whatever information they may have to aid in law
enforcement. In such situations the compelling atmosphere
inherent in the process of in-custody interrogation is not
necessarily present."
See Commonwea1th v. McNelly, 28 Mass. App. Ct. 985, 986 (1990).
When the police approach individuals whom they have a reasonable
suspicion to believe have committed a crime, any ensuing
interview "will have coercive aspects to it, simply by virtue of
the fact that the police officer is part of a law enforcement
16
system which may ultimately cause the suspect to be charged with
a crime. But police officers are not required to administer
Miranda warnings to everyone whom they question. Nor is the
requirement of warnings to be imposed simply . . . because the
questioned person is one whom the police suspect." Oregon v.
Mathiason, 429 U.S. 492, 495 (1977). See Commonwea1th v.
Podlaski, 377 Mass. 339, 343 (1979) ("The fact that the officer
would not let the defendant leave until he had talked to him did
not make the interrogation custodial").
In this same manner, the motion judge erroneously concluded
that the "interrogations [were] compelled under the implicit
threat of force" because the detectives were "armed police
officers who were prepared to back up Donovan's commands with
physical force, if need be." This observation misses the mark
as we must review what actually occurred, and not suppositions
of what might have occurred. If our law was otherwise, every
citizen encounter with the police would require Miranda warnings
prior to an investigative inquiry. See Commonwealth v. Alcala,
54 Mass. App. Ct. 49, 54 (2002) (no custody where "[a]lthough
some ten to fifteen local, State, and Federal police and other
officers were in the general vicinity, and perhaps six or seven
'converge[d]' on the three men at the building, no more than two
officers were with the defendant when he was interrogated").
17
In consideration of the four custody factors from
Commonwealth v. Groome, 435 Mass. at 212, we conclude that what
occurred here was an ordinary Terry stop, and it did not result
in custodial interrogation prior to the defendants' formal
arrests. See Commonwealth v. DePeiza, 449 Mass. at 375, citing
Berkemer v. McCarty, 468 U.S. 420, 440 (1984) ("Not every Terry-
type investigative stop results in a custodial interrogation").
Here, the defendants were approached by two plain-clothed
detectives, with badges displayed, who wished to inquire about
the suspected drug transaction Donovan had witnessed. Each
detective individually questioned one defendant, without the use
of physical force to separate them, and without the use of
handcuffs. The interviews were not conducted in an aggressive
manner, but rather in a "regular tone," and the defendants were
cooperative. Although the defendants were told to stay where
they were, no guns were drawn and no voices were raised. The
questioning was brief, and it occurred in a public parking lot.
See Commonwealth v. McNelly, 28 Mass. App. Ct. at 986 (inquiry
in public provided an "atmosphere which was far less
intimidating than the police dominated atmosphere at issue in
Miranda"). Also, the question, "[W]hat did you just buy?" was
investigative and not accusatory. See Commonwealth v. Kirwan,
448 Mass. 304, 311 (2007) (general questioning of "a fact-
finding nature, intended to verify or dispel a reasonable
18
suspicion of criminal activity," is investigative, not
accusatorial). While the detectives suspected the defendants of
having committed a crime, that suspicion was not expressly
conveyed to the defendants prior to their arrests. To the
extent Donovan informed Flodstrom of his Miranda rights, even
partially, that did not implicitly convey an otherwise
unannounced suspicion. If anything, it empowered Flodstrom to
end the interview. Finally, even though the investigative
inquiry ended in the defendants' arrests, the defendants had
admitted they had committed a crime, the evidence of that crime
was found in Cawthron's SUV, and the proceeds of the crime were
on Flodstrom's person. See Commonwealth v. Lavendier, 79 Mass.
App. Ct. 501, 505-506 (2011).
The defendants have failed to carry their burden of proof
that they were in custody for purposes of Miranda. The motion
judge erred by focusing on whether the defendants believed they
were free to leave to the exclusion of the other Groome factors,
which must be considered in determining whether Miranda warnings
are required before questioning during a Terry stop. See Howes
v. Fields, 565 U.S. 499, 509 (2012) ("Determining whether an
individual's freedom of movement was curtailed, however, is
simply the first step in the analysis, not the last. Not all
restraints on freedom of movement amount to custody for purposes
of Miranda"). Compare Commonwealth v. Shine, 398 Mass. 641, 648
19
(1986) ("Questioning the defendant next to his friend's
automobile where he had been sitting with his girlfriend, who
remained there during the conversation, is far from the
'incommunicado interrogation . . . in a police-dominated
atmosphere' which was the Supreme Court's concern in Miranda"
[citation omitted]), with Commonwealth v. Gordon, 47 Mass. App.
Ct. 825, 827 (1999) (Miranda warnings should have preceded
police asking woman, who had been stopped from fleeing and was
handcuffed in back of police cruiser, what she doing in area at
early hour of morning). The motions to suppress should have
been denied.
Order allowing motions to
suppress reversed.