dissent">*721WATHEN, Justice,

with whom McKU-SICK, Chief Justice, joins dissenting.

I must dissent. Following our earlier remand, the Superior Court once again found that defendant was in custody as he sat on the lawn and talked with Sergeant Moody through the open door of a police cruiser. This Court now concludes that an objective evaluation of those circumstances permits the finding that defendant was restrained in his freedom of movement to a degree associated with a formal arrest. The only two factors recited by the suppression justice in reaching his decision are the prior relationship between defendant and one of the officers, and the extensive planning involved in the undercover operation. I find no fault with the consideration of the first factor, but such a factor alone does not support the finding of custody. In my judgment the second factor, extensive planning on the part of the police, should not have been considered as part of an objective evaluation.

In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Supreme Court dealt with the issue of the subjective intent of the police in the following terms:

Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether the suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.

Id., at 442, 104 S.Ct. at 3151.

Although recognizing the content of the language set forth in Berkemer, this Court avoids its force by concluding that the Superior Court relied on “a police plan and its execution as communicated to Bridges by the police and as clearly evident to him by their conduct.” If such an interpretation of the findings were accurate, I would agree with the Court’s conclusion. Unfortunately, however, such an interpretation has never been argued by either party and more importantly, it finds no support in the terms of the suppression order. The following findings and conclusions were made by the Superior Court:

In addition, the Court has considered the entire testimony of the law enforcement officers who testified at the hearing with regard to the extensive planning which went into the undercover operation which culminated in the arrest of defendant Bridges and others on July 21, 1983. This factor is particularly important in this case in making a determination as to whether or not defendant Bridges was actually in custody at the time the statements were made, since the extensive planning and preparation required would certainly have a bearing on whether, once the defendant was apprehended, he would have been taken into custody, whether or not he was immediately arrested.

It is unmistakable that the Superior Court focused upon the testimony of the police officers concerning their plans, rather than the reasonable perception of the events unfolding before the defendant. The Court erroneously considered the subjective intent and unarticulated plans of the police officers in making the custody determination. I would vacate the order of suppression.

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