Commonwealth of Massachusetts

Trial Court of Massachusetts, Northampton District Court

1045 CR 1500, Counts 1 & 2

COMMONWEALTH

v.

W. MICHAEL RYAN

MEMORANDUM OF DECISION ON TWO MOTIONS TO DISMISS

A. Introduction

The court has denied the defendant’s two motions to dismiss. This memorandum states the

reasons for denying the motions.

B. The Motion to Dismiss Due to Spoliation of Evidence

Based on the evidence presented by the parties at the motion hearing, the court makes the

following fact findings on the motion to dismiss due to spoliation of evidence.

The police vehicle used by Officers Liptak and Marguet had video recording equipment. The

equipment successfully made a video recording of much of the parking lot incident from the time of

the arrival of the police vehicle until the defendant’s arrest. The recording equipment was also

capable of making a sound recording if it was functioning properly and was operated properly. On

the night of the arrest, no sound recording was made of the parking lot incident or of the conversation

in the police vehicle after the arrest.

When Officers Liptak and Marguet got out of the vehicle, Officer Liptak did not have with

him the pager-type device that would turn on the sound recording part of the equipment. As a result,
no sound recording was made of the persons speaking in the parking lot.

When the defendant was arrested the officers put him in the Liptak-Marguet police vehicle.

Officer Liptak got in the vehicle and tried to turn on the equipment that would record conversation in

the vehicle. He told the defendant that they would be making a sound recording. Officer Liptak

was unsuccessful in turning on the vehicle interior sound recording equipment. He did not know

this at the time. This is why no sound recording was made of the vehicle conversation.

There was no destruction of exculpatory evidence. There was no destruction of any

evidence. The officers’ unintentional lack of success in making a sound recording of the parking lot

incident or the vehicle conversation did not violate the defendant’s rights and does not require

dismissal. See Commonwealth v. Nom, 426 Mass. 152, 159 (1997).

C. The Motion to Dismiss for Lack of Probable Cause

The written complaint application by Officer Kohl satisfied the McCarthy probable cause

standard for the issuance of the complaint charging disorderly conduct and assault and battery on a

police officer. Commonwealth v. McCarthy, 385 Mass. 160, 161-63 (1982).

The defendant has not shown that the police presented a substantially distorted presentation of

evidence to the magistrate in the complaint application proceeding. The court finds that the officer’s

presentation of the evidence to the magistrate did not impair the integrity of the proceeding.

Commonwealth v. Vinnie, 428 Mass. 161, 175 (1998); Commonwealth v. Mayfield, 398 Mass 615, 621

(1986); see Commonwealth v. O’Dell, 392 Mass. 445, 448-49 (1984).

January 5, 2011 Charles J. Hely

Justice
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