Commonwealth v. Cawthron, 15–P–1751.

• Decision Date: 06 January 2017
• Docket Number: No. 15–P–1751.,15–P–1751.
• Citation: 68 N.E.3d 661,90 Mass.App.Ct. 828
• Parties: COMMONWEALTH v. Keith CAWTHRON (and three companion cases).
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 828

68 N.E.3d 661

COMMONWEALTH

v.Keith CAWTHRON (and three companion cases¹ ).

No. 15–P–1751.

Appeals Court of Massachusetts, Middlesex.

Argued Nov. 10, 2016.

Decided Jan. 6, 2017.

Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

Thomas M. Glynn, Melrose, 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(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.

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 vehicle. 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 vehicle about fifteen to twenty yards away from Cawthron's SUV. While he followed Cawthron, Donovan contacted Columbus, who arrived in an unmarked vehicle 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 SUV 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 vehicles. 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 vehicle 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 Flodstrom's vehicle. 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 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. 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 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' vehicles 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, 882 N.E.2d 328 (2008), citing Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (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, 54 N.E.3d 1135 (2016), quoting from Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 558–559, 633 N.E.2d 1058 (1994). "A finding is clearly erroneous when ‘although there is evidence to support it, the reviewingcourt 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, 713 N.E.2d 992 (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, 908 N.E.2d 788 (2009), quoting from Commonwealth v. Kaupp, 453 Mass. 102, 105, 899 N.E.2d 809 (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, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) ; Commonwealth v. Gelfgatt, 468 Mass. 512, 519 n. 12, 11 N.E.3d 605 (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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court adopted a set of prophylactic...