Commonwealth of Massachusetts

Trial Court of Massachusetts, Northampton District Court

1045 CR 1500, Counts 1 & 2

COMMONWEALTH

v.

W. MICHAEL RYAN

MEMORANDUM OF DECISION AND ORDER ON MOTION TO SUPPRESS

A. Introduction

The defendant is charged with disorderly person and assault and battery on a police officer.

The motion to suppress seeks suppression of the defendant’s brief comments to a police officer in

which the defendant refused to identify himself and refused to answer preliminary questions relating to

a disabled car and the officer’s suspicions on the possible offense of operating under the influence.

The motion to suppress is denied. The reasons are explained below.

The court’s findings are based on the evidence and the reasonable inferences that the court has

drawn from the evidence.

B. Facts

On October 15, 2010, at about 8:40 p.m., Northampton Police Officer Andrew Kohl was on a

routine bicycle patrol in a parking lot behind the Probate and Family Court on King Street. The

parking lot was full. Officer Kohl noticed a Nissan sedan stopped in a travel lane of the parking lot.

The Nissan’s lights were on and its engine was running. The Nissan was stopped in a position that

was blocking at least one parked car.

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The Nissan had a flat tire. Officer Kohl saw a man and a woman next to the Nissan. They

were near the trunk and near the flat tire. There was a pile of debris including soda cans on the

ground next to the trunk. Officer Kohl did not know the man or the woman. Later, after his arrest,

the man was identified as the defendant.

Officer Kohl was wearing a plainly marked police uniform. He stopped his bike near the

defendant and the woman. He asked them if they needed assistance. The defendant said they were

“all set.”

The defendant walked to the Nissan’s trunk and the woman approached Officer Kohl.

Officer Kohl noticed a strong odor of an alcoholic beverage on the defendant’s breath and on the

woman’s breath. The woman was very unsteady on her feet and walking in a peculiar manner. She

bumped into the Nissan and could not consistently keep her balance. Both the defendant and the

woman had glassy and bloodshot eyes.

Officer Kohl reasonably suspected that both the defendant and the woman were intoxicated

and that they might drive off in the Nissan. He also suspected that one of them may have already

struck something and damaged the tire while driving the Nissan.

Officer Kohl asked them again, “are you all set?” and “do you need anything?” The

defendant approached Officer Kohl. Officer Kohl asked the defendant where he was coming from.

The defendant replied matter-of-factly, “I don’t need to answer that.” The defendant’s demeanor

then changed. He became agitated. He began to violently throw things out of or into the trunk.

The defendant’s demeanor and behavior increased the officer’s suspicion that he was intoxicated.
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Officer Kohl radioed for assistance from a backup officer. He asked the defendant and the

woman for identification. The defendant’s said, “I don’t have to give you identification.” The

woman did not respond at all. The defendant became loud, agitated and upset with Officer Kohl.

Officer Kohl told the defendant that he could call AAA to get them assistance with the car or that the

car would have to be towed because it was blocking the parking lot. The defendant said, “fine, tow

it.” The defendant then changed his mind and said, “we’ll just leave the car here.” Officer Kohl

said, “don’t you want to know where the car will be towed to?” The defendant seemed angry. He

told the officer, “you don’t have jurisdiction here, this is Federal property.”

Officer Dennis Liptak and Officer Marguet arrived. Both were in uniform. They came

together in the same marked police vehicle. Officer Kohl told the defendant, “we have to get this car

out of here.” He did not want either the defendant or the woman to be driving the Nissan because of

their intoxication. The defendant again seemed upset. The defendant said to the woman, “we’re

leaving.” The defendant put his arm on the woman’s arm or back, and they started to walk away in

the direction of a restaurant near the parking lot. Officer Liptak stepped in front of them, blocked

them and said, “you can’t leave yet.”

The defendant put his hands in his pockets. For officer safety reasons, Officer Liptak told

him to take his hands out of his pockets.

Officer Kohl performed a patfrisk on the defendant both to determine if he had any weapon

and to learn the defendant’s identity. He had the defendant put his hands on the Nissan with his back

facing Officer Kohl. Officer Kohl felt the outside of the defendant’s right side and then his left side.
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He felt what he thought was a wallet in the defendant’s left pants pocket. Officer Kohl reached in

this pocket and took out the wallet and some separate cash. Officer Kohl started to open the wallet to

look for identification. As he did so, the defendant turned around, swung his hand, and hit Officer’s

Kohl on the officer’s hand or wrist. The defendant said, “what are you doing?” It appears from the

video of the incident that the defendant may also have been trying to grab his wallet from Officer

Kohl’s hand.

Officer Kohl stepped back. The defendant aggressively raised his hand toward Officer Kohl

with his finger pointed toward the officer’s face. Officers Liptak and Marquet quickly moved in to

assist. The officers handcuffed and arrested the defendant. It only took a second or two between

the striking of Officer Kohl and the handcuffing of the defendant. As the officers handcuffed him,

the defendant said, “I’m Mike Ryan. I’m a retired judge.” Until this point, the defendant had not

given the officers any information about his identity despite Officer Kohl’s requests. None of the

officers present knew the defendant’s identity until his statement while he was being handcuffed.

The defendant was put in a police vehicle, taken to the police station, booked and given

Miranda warnings. The defendant’s motion to suppress does not contend that any statements were

unlawfully obtained from him after his arrest.

C. Additional Fact Findings and Conclusions

(1) There Was No Miranda Violation in the Officer’s Questioning of the Defendant in the
Parking Lot

Miranda requirements did not apply to Officer Kohl’s preliminary questions to the defendant
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in the parking lot before the arrest. The defendant was not in custody for Miranda purposes at the

time he refused to answer the officer’s questions about where he had been and refused to provide any

identification of himself.

When Officer Kohl first spoke with the defendant and the woman by the Nissan, he was

properly and reasonably performing a community caretaking and assistance function regarding a

disabled vehicle that was blocking a parking lot and two people who may have needed assistance.

Commonwealth v. Leonard, 422 Mass. 504, 506-509, cert. denied, 519 U.S. 877 (1996). “Police

encounters with citizens are not limited to criminal investigations or the exercise of regulatory duties.”

Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 739-740 (1998)

Gradually Officer Kohl’s encounter with the defendant and the woman became a Terry

threshold inquiry as well as a community caretaking and assistance encounter. Early in the

encounter, before there was any restraint on the defendant’s liberty, Officer Kohl reasonably suspected

that the defendant or his companion was about to commit and perhaps had already committed the

criminal offense of operating a vehicle while under the influence of alcohol. For the safety of the

public he had a duty to intervene. In the circumstances, it was reasonable and lawful for Officer

Kohl to ask for identification from the defendant and the woman and to ask the defendant where he

was coming from. It was proper for the officer to try to determine if either person drove the Nissan

to this spot while under the influence of alcohol.

The Miranda warnings requirement did not apply to Officer Kohl’s preliminary questions

to the defendant before his arrest because the defendant was not in custody. Berkemer v.
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McCarty, 468 U.S. 420, 439-440 (1984); Commonwealth v. McNelley, 28 Mass. App. Ct. 985

(1990). For Miranda to apply, there must be “a formal arrest or restraint on freedom of movement of the degree associated

with a formal arrest.” Commonwealth v. Morse, 427 Mass. 117, 123 (1998). The “temporary and relatively nonthreatening

detention involved in a traffic stop or Terry stop . . . does not constitute Miranda custody.” Maryland v. Shatzer, 130 S.Ct.

1213, 1224 (2010); United States v. Quinn, 815 F.2d 153, 157 n. 2 (1st Cir. 1987); Commonwealth v. Mebane, 33 Mass.

App. Ct. 941, 943 (1992).

(2) The Possible Admissibility of the Refusal Evidence at the Trial

Although there was no Miranda violation by the police, this does not make the refusal

evidence admissible. Normally a defendant’s refusal to answer police questions is not admissible

as evidence to show an implied admission that the defendant is guilty of a charge. In some limited

situations, however, a defendant’s refusal to answer a police officer’s preliminary, prearrest questions

may be admissible. See Commonwealth v. Waite, 422 Mass. 792, 795-800 (1996).

Although refusal-to-answer evidence is generally not admissible, the Commonwealth may be

able to show at the trial that defendant’s refusal to identify himself and to answer the officer’s

preliminary questions is relevant to a material trial issue. The evidence may be necessary to explain

Officer Kohl’s removal of the defendant’s wallet to look for some identification of the defendant.

The evidence may be relevant to rebut a claim of excessive force or unlawful conduct by the officer.

The admissibility of the defendant’s refusal to identify himself and to answer the preliminary

questions will depend upon whether the Commonwealth can demonstrate at the trial that the probative

value of the evidence on a material trial issue outweighs the potential for unfair prejudice. If there is
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a sufficient basis for admitting the evidence, limiting instructions would be required upon request. If

so requested, the court would be required to instruct the jury that the refusal evidence cannot be

considered as evidence that the defendant is guilty of any offense. The jury should also be instructed,

upon request, that consideration of the evidence must be strictly limited to the narrow purpose or

purposes for which it was admitted.

D. Order

The motion to suppress is denied.

January 5, 2011 Charles J. Hely

Justice