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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.
