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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.
